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WORKS  BY  THE  AUTHOR  OF 
"THE   GEOGRAPHY   OF    MARRIAGE." 


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ERRATUM. 


Pa^e  279.  Among  those  authorized  to  solemnize  marriage, 
the  leader  of  the  Society  of  Ethical  Culture  in  the  city  of  New 
York  is  also  designated. 


THE 


Geography  of  Marriage 


LEGAL   PERPLEXITIES   OF   WEDLOCK 
IN   THE    UNITED   STATES 


WILLIAM    L.  SNYDER 


NEW  YORK  AND   LONDON 

G.   p.  PUTNAM'S   SONS 
^\i£.  Iluiclurbochcr  ^wss 


Copyright  by 
WILLIAM  L.  SNYDER 


Press  of 

G.  P.  Putnam's  Sons 

New  York 


PEEFACE. 


Maeeiage  involves  all  there  is  of  domestic  hap- 
piness. The  subject,  therefore,  presents  questions  of 
the  greatest  moment  and  highest  importance.  The 
controversy  which  has  arisen,  as  to  the  stability  of 
marriage,  the  propriety  of  divorce,  and  the  rules 
which  should  be  established  to  govern  the  relation  of 
husband  and  mfe,  has  been  absorbing  public  atten- 
tion and  is  constantly  growing  in  earnestness.  Men 
and  women  throughout  Christendom,  entertaining 
all  sorts  of  views  on  the  subject,  have  contributed  to 
the  discussion.  One  extreme,  voicing  the  dogmas  of 
the  Roman  Catholic  Church,  is  presented  in  the  doc- 
trine advanced  by  the  American  Primate,  Cardinal 
Gibbons,  declaring  that  no  man  and  no  legislation  can 
validly  dissolve  the  nuptial  bond,  and  affirming  that  a 
divorced  Catholic,  who  marries  again  during  the  life- 
time of  the  innocent  party,  thereby  excludes  himself 
from  the  communion  of  the  Church.  The  other  ex- 
treme is  reached  by  the  attacks  made  upon  the  insti- 
tution of  marriage  by  speculative  ^mters  and  theorists, 
like  Mrs.  Mona  Caird  and  others,  who  challen2:e  the 


iv  PREFACE. 

wisdom  and  propriety  of  monogamy,  and  declare 
that  "  the  present  form  of  marriage — exactly  in  pro- 
portion to  its  conformity  with  orthodox  ideas — is  a 
vexatious  failure."  As  well  curse  the  sunlight,  and 
rail  at  the  moon.  The  views  of  these  extremists  are 
supplemented  by  writers  like  Mr.  Richard,  who 
seeks  in  this  age,  near  the  dawn  of  the  twentieth 
century,  to  bolster  up  the  curse  of  polygamy,  by 
arguments  to  prove  that  it  is  the  form  of  marriage 
not  only  authorized  but '  distinctly  sanctioned  by 
"  the  Almighty  " ;  and  the  Marquis  of  Queensberry, 
^vho  seriously  objects  to  monogamy  as  a  grievous 
error,  and  altogether  a  barbarous  institution  born  of 
hypocrisy  and  bigotry. 

Yet,  strange  as  it  may  seem,  the  theories  advanced 
by  all  these  extremists,  as  well  as  by  the  more  con- 
servative element,  are  really  practised  in  the  United 
States.  Extending  between  the  two  great  oceans  of 
the  world,  running  from  the  tropics,  far  into  the 
north,  a  portion  of  its  territory  extending  even  within 
the  arctic  circle,  it  contains  a  homogeneous  people, 
(h\('lling  peacefully  and  contentedly  together,  under 
half  a  hundred  local  governments,  each  with  its  own 
laws  governing  the  marriage  relation.  In  the  various 
States  comprising  the  geographical  limits  of  the 
American   Union,  are  to  be  found  the  radical  and 


PREFACE. 


diverse  theories,  advanced  by  the  ^mters  referred  to, 
in  practical  operation.  South  Carolina  refuses,  for 
any  reason,  to  allow  the  dissolution  of  the  nuptial 
bond,  and  divorces  there  are  altogether  forbid- 
den. In  New  York,  the  ground  for  divorce  is 
virtually  restricted  to  the  crime  of  adultery; 
though,  if  one  of  the  parties  is  sentenced  to  im- 
prisonment for  life,  such  party  being  civilly  dead, 
the  civil  contract  on  that  account  is  dissolved.  In 
many  States  divorce  is  practically  free.  It  may 
be  granted  for  incompatibility  of  temper,  or  other 
light  or  trivial  causes.  In  Utah,  the  system  of  mo- 
nogamy is  altogether  ignored,  and  polygamy  is 
practised,  in  spite,  it  is  true,  of  the  Act  of  Congress 
and  the  recorded  protest  of  the  American  people. 
It  is  not  necessary,  therefore,  to  indulge  in  specula- 
tion, or  conjecture  as  to  results.  Which  of  the 
American  States  has  developed  the  highest  degree  of 
social  happiness,  and  where  does  contentment,  social 
order,  and  prosperity  most  abound  ? 

The  laws  of  marriage,  therefore,  in  the  American 
Union  are  determined  by  geographical  position,  and 
suggest  the  title  of  the  book.  In  view,  therefore,  of 
the  great  variety  of  laws  and  the  different  rules  of 
punishment  prescribed,  a  mistake  in  geography  in 
matrimonial  affairs  may  prove  serious. 


vi  PRE  FA  CE. 

These  sovereign  commonwealtlis  in  tlie  Federal 
Union  are  welded  and  bound  tosjether  like  one 
State,  by  a  perfect  and  comprehensive  system  of 
railways,  and  a  great  web  of  wires  transmitting  intel- 
ligence by  means  of  electric  cu]Tents.  The  popula- 
tion being  all  citizens  of  one  government,  while  yet 
citizens  of  a  particular  State,  iising  the  modern  con- 
veniences of  travel  and  communication,  commingle 
constantly.  Domestic  difficulties  arise,  and  by  reason 
of  change  of  residence,  or  a  desire  to  appropriate  the 
benefits  of  liberal  laws  prevailing  in  other  States, 
conflicts  of  authority  upon  social  questions  are  con- 
stantly arising.  The  evil  results  of  this  conflict  are 
increasing.     What  is  the  remedy  ? 

In  the  following  pages  I  have  endeavored  to  set 
forth  briefly  some  of  the  facts  connected  with  the 
subject,  to  show  the  lack  of  harmony  existing;  to 
call  attention  to  the  various  laws  as  they  exist ;  and 
to  suggest  what  remedy,  if  any,  is  feasible. 

William  L.  Snydee. 

Temple  Court, 
New  York,  March,   1889. 


CONTENTS. 


CHAPTER   I. 

PAGE 

The  Geography  of  Marriage i 


•  CHAPTER   II. 
Who  may  Lawfully  Marry  ? 7 

CHAPTER  III. 
Who  are  Forbidden  to  Marry  ? lo 

CHAPTER   IV. 
Marriage  of  Children 15 

CHAPTER    V. 

Consequence  of  Children  Marrying  without  Con- 
sent OF  Parents       .......     22 

CHAPTER  VI. 
Clandestine  Marriages  and  Runaway  Matches        .     28 

CHAPTER   VII. 

Forbidden    Marriages    among    Blood    Relatives — 
Marriage  of  Cousins 37 

CHAPTER   VIII. 

Marriage   among   Husband's   or   Wife's    Kindred — 

Marriage  with  Deceased  Wife's  Sister        .         .     57 


viii  CONTENTS. 

CHAPTER   IX. 

PAGE 

Mongrel  Marriages — Miscegenation  ,         .        .         .64 

CHAPTER   X. 

Bigamy  and  its  Consequences — Matrimonial  Entan- 
glements   71 

CHAPTER   XI. 

Marriage  under  Belief  that  Absent  Husband   or 

Wife  is  Dead 78 

CHAPTER  XII. 

Foreign  Divorces — Prohibition  as  to  Marriage  of 

Divorced  Persons 83 

CHAPTER   XIII. 

Prohibition  as  to  Marriage  of  Divorced  Persons 

Further  Considered 93 

CHAPTER   XIV. 
What  Constitutes  a  Valid  Marriage  ?       .         .         .  103 

CHAPTER   XV. 
The  Marriage  License 119 

CHAPTER  XVI. 

Pains  and  Penalties — Liability  of  Celebrant  and 

Licensing  Official 124 

CHAPTER  XVII. 

Qualifications  of  Celebrant — Clergymen,  Priests, 

and  Magistrates 134 


CONTENTS. 


CHAPTER   XVIII. 


Is   A    Marriage,  Valid   in    the    State    or   Country 

Where  Celebrated,  Valid  Elsewhere?         .         .   141 

CHAPTER   XIX, 
Divorce .  156 

CHAPTER   XX. 
The  Remedy — Objections  to  a  National  Law    .         .175 

CHAPTER   XXI. 

The  Remedy  [Continued^ — An  Amendment  Limiting 
the  Powers  of  the  States,  and  Concert  of 
Action  among  the  States 182 

CHAPTER    XXII. 

Bird's-Eye  View  of  the  System  of  Marriage  and 
Divorce  in  the  United  States,  Arranged  Geo- 
graphically       190 

Index        


THE 
GEOGRAPHY   OF    MARRIAGE. 


CHAPTER  I. 

THE    GEOGRAPHY    OF    ilAEEIAGE. 


"  How  irksome  is  this  music  to  my  heart  ! 
When  such  strings  jar,  what  hope  of  harmony." 

Shakespeare. 

Owing  to  tlie  variety  and  diversity  of  the  laws  of 
marriage  and  divorce  in  various  states  and  countries, 
the  questions  touching  the  integrity  of  the  domestic 
relations — rights  of  inheritance,  problems  of  legiti- 
macy, and  controversies  involving  the  essentials 
which  lie  at  the  foundation  of  social  order, — these 
important  inquiries  are  made  to  turn  largely  upon 
questions  of  geography.  The  family  is  older  than  the 
state,  and  ranks  first  in  importance,  since  the  welfare 
and  stability  of  civil  government  depends  upon  the 
honor,  the  purity,  and  the  sacredness  of  home. 

What  legislation,  therefore,  is  more  important 
than  that  which  affects  the  social  status  of  the 
individual  ?  Yet  this  legislation  differs  so  radically 
in  our  own  land  and  among  other  governments,  that 
the  questions  concerning  it,  in  a  given  instance,  must 


2  THE    GEOGRAPHY  OF  MARRIAGE. 

be  regarded  with  respect  to  geograpliical  boundaries, 
and  are  narrowed,  primarily,  to  tlie  investigation  of 
the  particular  law  of  a  particular  place. 

Independent,  therefore,  of  matters  of  sentiment — 
love,  devotion,  affection,  romance, — and  kindred  met- 
aphysical and  psychological  subjects  which  writers 
of  fiction  and  authors  of  the  drama,  the  poet  and  the 
painter,  love  to  dwell  upon  in  connection  with  the 
subject  of  marriage  and  divorce,  there  are  practical 
questions  continually  arising,  upon  the  solution  of 
which  the  welfare  of  the  individual  and  the  common 
interests  of  society  depend. 

Marriage  operates  as  a  revolution,  because  it  not 
only  changes  the  social  condition  of  the  contracting 
j)arties,  and  creates  new  property  rights  and  obliga- 
tions, but  prospectively  it  regards  the  destiny  of 
offspring  and  rights  of  inheritance  of  paramount 
importance.  The  civil  status  and  property  rights 
which  attach  to  the  condition  of  matrimony  are 
therefore  of  absorbing  interest  and  of  more  than 
ordinary  importance. 

This  interest,  as  has  been  observed,  is  universal. 
The  subject  concerns  those  who  are  unmarried ;  for, 
in  the  ordinary  course  of  events,  it  is  natural  to 
presume  that  the  maid  and  the  bachelor  will  sooner 
or  later  take  a  personal  and .  immediate  interest  in 
matrimony,  as  a  condition  and  estate  upon  which 
they  will  themselves  enter.  After  the  obligations 
of  wedlock  have  been  assumed,  this  interest  con- 
tinues, in  view  of  the  fact  that  wdth  the  celebration 


THE   GEOGRAPHY  OF  MARRIAGE.  3 

of  the  nuptials  new  riglits  and  duties  arise  touching 
the  community  of  interest  as  to  fortune  and  estate 
created  by  the  marriage.  The  children,  likewise, 
who  form  part  of  the  household,  whose  domestic 
happiness  and  matrimonial  alliances,  prudent  and 
loving  parents  regard  with  fond  solicitude,  create 
lik-ewdse  a  fresh  interest  in  the  subject,  because 
children,  even,  may  marry  and  be  given  in  marriage. 
Questions,  also,  as  to  the  right  of  inheritance  are 
frequently  presented  which  involve  in  their  solution 
the  validity  of  matrimonial  alliances  contracted 
under  peculiar,  perhaps  romantic  circumstances,  in 
states  or  countries  where  the  marriage  laws  differ 
materially  from  those  in  which  the  property  which 
is  the  subject  of  controversy  is  situated,  or  in  whose 
tribunals  the  legal  problems  are  discussed.  They 
frequently  develop  striking  dramatic  incidents  and 
novel  situations  touching  family  secrets  and  family 
honor.  They  are  often  complicated  with  claims  of 
repeated  marriages,  about  which  cluster  the  results 
of  loose  and  inconsistent  divorce  laws,  revealing 
consequences  which  cast  a  gloom  and  bitterness  upon 
blighted  lives  and  ruined  homes. 

It  is  a  remarkable  fact  that,  notwithstanding  the 
vital  importance  which  attaches  to  the  marriage  con- 
tract, the  rules  of  law  which  govern  it  are  conflicting 
and  contradictory,  and  lack  uniformity  and  harmony 
to  a  degree  unknown  in  connection  with  any  other 
species  of  contract.  Every  countiy,  every  state,  in 
view  of  its  political  sovereignty,  prescribes  the  rules 


4  THE    GEOGRAPHY  OF  MARRIAGE. 

which,  shall  prevail  within  its  borders,  as  to  social 
order  and  domestic  life.  The  law  of  marriage  in 
England  differs  radically  from  that  which  prevails  in 
Scotland,  and  both  differ  in  detail  from  that  which 
prevails  in  Ireland.  In  the  United  States  every  State 
and  every  Territory  enacts  its  own  pecnliar  code  of 
laws  on  the  subject  of  marriage  and  divorce,  and 
these  are  so  varied  and  diverse  as  to  give  rise  to  a 
seeming  interminable  jumble  and  complication.  The 
many  systems  which  prevail  in  thirty-eight  States, 
nine  Territories,  and  the  District  of  Columbia,  em- 
bracing the  geographical  dominions  of  the  United 
States,  excepting  Alaska,  are  so  radically  different  in 
many  instances,  and  this  difference  is  so  imperfectly 
understood  throughout  the  country,  that  these  novel 
and  embarrassing  controversies  growing  out  of  matri- 
monial entanglements,  result  as  a  necessary  conse- 
quence of  systems  so  complex  and  varied,  and  con- 
cerning which,  though  the  subject  has  been  widely 
discussed,  no  legislative  effort  to  render  uniform  and 
harmonious  has  thus  far  been  accomplished.  Since 
every  state,  territory,  and  country  has  legislated  in- 
dependently on  these  important  subjects,  the  rules 
with  regard  to  marital  rights  and  obligations  are  as 
diverse  and  varied  as  the  geography  of  the  Avorld. 

It  is  apparent,  from  these  observations,  that  in  order 
to  determine  whether  a  marriage  is  valid,  or  whether 
in  view  of  a  subsequent  marriage  the  first  marriage 
has  been  dissolved  ;  in  order  to  ascertain  whether 
offsj)ring  are  legitimate,  whether  property  rights  at- 


THE   GEOGRAPHY  OF  MARRIAGE.  5 

tacli,  whetlier  the  criminal  statutes  for  the  punish- 
meut  of  bigamy  or  polygamy  have  been  violated,  the 
first  and  essential  inquiry  must  involve  a  question  of 
geography.  Where,  in  what  state,  or  country,  was 
the  marriage  contracted,  or  in  what  locality  Avas  it 
sought  to  be  dissolved  ?  Questions  of  sentiment,  give 
way  to  questions  of  geography,  in  solving  matrimonial 
problems,  and  in  determining  the  rights  which  per- 
tain to  the  matrimonial  state. 

We  live  in  an  age  of  scientific  discovery,  in  which 
inventions  for  the  appliance  of  steam  and  electricity 
have  annihilated  distance,  and  made  the  world  com- 
mon. Intellio;ence  can  be  transmitted  and  communi- 
cated  to  distant  cities  in  different  states  with  the 
velocity  of  light,  outstripping  in  dispatch  even  the 
velocity  of  sound.  An  individual  can  migrate  into 
the  various  states  ^vith  the  same  ease  with  which  he 
journeys  from  his  residence  to  the  railway  station. 
Under  such  conditions,  the  rules  governing  the  do- 
mestic relations  in  our  American  commonwealth, 
united  under  one  government,  and  yet  possessing 
within  its  dominion  nearly  fifty  distinct  governments, 
with  as  many  different  systems  regulating  the  essen- 
tial matters  pertaining  to  marriage  and  divorce,  and 
forming  within  it  the  rules  of  domestic  life,  presents 
a  social  system  so  complex  in  its  varied  aspects  and 
details,  as  to  render  an  acquaintance  with  it  difficult. 
But  the  knowledge  with  respect  to  it,  is  important  and 
necessary,  and  will  be  found  to  be  insti'uctive  and 
entertaining. 


O  THE   GEOGRAPHY  OF  MARRIAGE. 

The  discussion  whicli  has  arisen  in  several  of  the 
States  and  in  the  Congress  of  the  United  States 
with  a  view  to  securing  a  uniform  law  upon  the  sub- 
ject, either  through  a  conference  of  representatives  of 
all  the  States,  as  has  been  suggested  to  the  legisla- 
ture by  the  governor  of  New  York,  or  by  securing 
an  amendment  to  the  federal  Constitution  conferring 
uj^on  Congress  power  to  make  a  uniform  law  of  mar- 
riage and  divorce,  is  moulding  public  opinion  as  to 
the  necessity  of  a  uniform  law.  This  pressing  need 
becomes  more  apparent  when  the  various  systems 
now  in  force  are  examined  and  compared. 


CHAPTER  II. 

WHO   MAY     LAWFULLY    MAERY. 


What  is  there  in  the  vale  of  life 

Half  so  delightful  as  a  wife, 

When  friendship,  love,  and  peace  combine 

To  stamp  the  marriage  bond  divine  ?  " 


COWPER. 


There  are  certain  disqualifications  whicli  preclude 
individuals  from  entering  upon  the  lioly  estate  of 
matrimony.  These  disqualifications,  though  excep- 
tional, are,  when  they  exist,  clearly  marked  and  well 
defined  in  most  cases.  They  spring  from  the  law  of 
nature,  as  disqualifications  of  blood ;  or  from  mental 
or  physical  infirmity;  or  want  of  age.  There  are 
disabilities,  however,  created  by  the  laws  of  the 
country  where  the  individuals  reside,  while  others 
spring  from  social  prejudice  or  ecclesiastical  restric- 
tions, binding  only  in  conscience  in  a  given  case,  and 
turn  largely  upon  matters  of  taste  or  of  social  man- 
ners and  customs. 

It  is  not  our  purpose  to  discuss  now  these  various 
disqualifications.  They  will  be  considered  fully  in 
the  following  chapters. 

The  rule  is,  however,  that  any  man  and  woman, 
being  unmarried,  and  not  related  by  blood,  and  not 
mentally  incapacitated,  may  marry,  though  such  per- 


8  THE   GEOGRAPHY  OF  MARRIAGE. 

sons  have  not  reached  years  of  maturity ;  provided 
they  are  old  enough  respectively  to  be  able  to  com- 
prehend the  nature  of  the  marriage  relation  and 
consent  to  the  union. 

The  element  of  consent  is  important.  The  age  at 
which  persons  are  allowed  to  consent  to  enter  upon 
marriao-e  differs  in  different  states.  So  that  the 
question,  as  to  whether  or  not  persons  are  really  man 
and  wife,  who  have  gone  through  the  forms  of  mar- 
riage, and  who  are  in  every  way  capable  of  marrying, 
save  only  with  regard  to  the  question  whether  they 
are  considered  old  enough  to  marry,  will  depend 
entirely  upon  the  law  of  the  state  or  country  where 
the  marriage  takes  place.  It  is  not  necessary,  in  any 
country,  that  persons  shall  have  reached  the  estate  of 
manhood  or  womanhood  in  order  to  become  man  and 
wife,  though  in  some  states  marriage  licenses  are  not 
allowed  to  be  issued  to  parties  under  age  without 
the  parents'  consent.  Children  may  lawfully  marry. 
The  important  question  is,  at  what  age  ?  Like  all 
the  inquiries  in  this  important  subject,  the  solution 
will  depend  upon  a  question  of  geography.  If  nei- 
ther the  would-be  bride  or  groom  have  passed  the 
age  of  seven  years,  there  can  be  no  marriage,  and  any 
ceremony  performed  with  a  view  to  make  the  couple 
husband  and  wife  would  not  be  recognized  or  sanc- 
tioned. The  attempted  marriage,  though  consented 
to  by  parents,  would  be  absolutely  void.  But  after 
the  girl  has  arrived  at  the  age  of  twelve,  and  the 
youth  has  attained  the  age  of  fourteen,  they  have 


WHO  MAY  LAWFULLY  MARRY.  g 

readied  a  period  in  life  wlien,  according  to  the  old 
law  of  England,  ordinarily  termed  tlie  common  law, 
and  which,  still  prevails  in  many  States  of  the  Union, 
they  may  lawfully  consent  to  the  marriage,  and  such 
marriage,  if  consummated  by  the  parties  living  to- 
gether as  husband  and  wife,  will  be  valid  and  bind- 
ing, if  the  ceremony  was  performed  in  England  or  in 
Scotland,  or  in  any  State  of  the  Union  where  the 
common-law  rule  still  prevails.  In  some  of  the 
States,  however,  this  rule  has  not  been  rigidly 
adopted,  and  the  age  of  consent  varies.  In  some 
States  it  is  fixed  at  fourteen,  fifteen,  and  sixteen  in 
the  female,  and  sixteen,  seventeen,  and  eighteen  in 
the  male.  This  subject  will  be  further  considered 
in  the  chapter  relating  to  the  marriage  of  children. 

The  rule,  however,  as  has  been  stated,  is,  that  where 
the  bride  and  groom  are  unmarried,  and  not  related 
by  blood,  and  are  mentally  capable  of  consenting, 
they  may  lawfully  marry,  though  the  bride  is  but 
twelve  years  of  age,  or  in  some  States  sixteen,  and 
the  groom  is  but  fourteen  years  of  age,  or  in  some 
States  eio-hteen. 

To  this  general  rule  there  are  but  rare  exceptions, 
relating  chiefly  to  differences  growing  out  of  race  or 
color,  religious  convictions,  or  the  relationship  of  the 
parties  arising  from  ties  of  affinity. 


CHAPTER  III. 


WHO    AEE    FORBIDDEN    TO    MAERY. 


"  For  nature  so  preposterously  to  err, 
Being  not  deficient,  blind,  or  lame  of  sense. 
Sans  witchcraft  could  not." 

Shakespeare. 

It  is  a  custom  sanctioned  by  long  usage  to  inquire 
whether  any  just  cause  or  impediment  exists  which 
would  make  the  marriage  contract  unla^\'ful.  For 
this  reason  it  is  customary  in  the  Latin  Church,  as 
well  as  in  the  Church  of  England,  to  publish  the 
banns,  which  is  simply  a  notice  made  by  the  minister 
from  the  altar  that  a  certain  couple,  whose  names 
are  given,  are  about  to  marry,  and  the  congregation 
is  asked  to  declare  any  cause  or  just  impediment  to 
the  marriage,  if  such  cause  be  known  to  any  one. 
This  inquiry  is  usually  put  to  the  congregation  for 
three  consecutive  Sundays  before  the  time  fixed  for 
the  wedding.  It  is  put  also  by  the  minister  when 
he  performs  the  ceremony.  It  is  not  a  mere  form. 
It  is  of  the  utmost  importance  to  know,  before  the 
marriage  takes  place,  whether  there  are  facts  which, 
if  revealed,  would  render  the  marriage  illegal  and 
void,  or  voidable,  and  thereby  entail  misery  and 
disgrace  upon  the  parties  or  their  offspring. 


WHO  ARE  FORBIDDEN   TO  MARRY.  II 

Fortunately  the  impediments  which  operate  as  a 
bar  to  the  marriage,  or  which  furnish  sufficient 
grounds  upon  which  to  have  it  subsequently  annulled, 
are  not  numerous.  They  rest,  however,  upon  certain 
well  defined  principles  of  natural  reason,  or  of  public 
policy,  such  as  disqualifications  of  blood ;  or  impedi- 
ments arising  from  mental  or  physical  infirmity ;  or 
from  the  fact  of  the  existence  of  a  prior  marriage  as 
to  one  or  both  of  the  parties,  which  has  not  been 
annulled  or  dissolved,  or  a  pre-contract  or  betrothal 
of  one  or  both ;  or  from  the  fact  that  fraud  and 
deception  have  been  practised  to  secure  the  consent 
to  the  marriage;  or  from  the  fact  that  one  of  the 
parties,  while  acting  under  the  honest  conviction 
that  he  or  she,  as  the  case  may  be,  is  a  widower  or  a 
widow,  is,  in  truth,  the  husband  or  mfe  of  a  living 
person.  Phili]3  Ray  may  be  about  to  marry  Annie 
Arden,  wholly  unconscious  of  the  fact  that  the  long- 
lost  Enoch  is  anxiously  waiting  an  opportunity  to 
return  to  the  confines  of  civilization,  after  an  enforced 
absence  or  silence  so  continuous  as  to  give  rise  to  the 
belief  that  he  is  no  longer  in  the  land  of  the  living. 
So  that  while  engaged  in  the  performance  of  an  act 
which,  under  proper  conditions,  gives  rise  to  the 
largest  measure  of  human  happiness,  the  parties, 
through  ignorance  or  want  of  consideration  or  proper 
judgment,  may  be  committing  a  crime  against  society, 
or  involving  their  individual  happiness,  and  which 
must,  of  necessity,  end  in  misery  and  bitter  disap- 
pointment.    The  result  of  such  a  blunder  is  likely, 


12  THE    GEOGRAPHY   OF  MARRIAGE. 

also,  to  reacli  immediate  posterity,  destined  to  be 
broiio-ht  into  the  world  nnder  conditions  renderino; 
their  identity  a  compromise,  and  life  a  burden. 

■  Where  the  error  involves  a  violation  of  the  law  of 
nature,  rather  than  the  conventional  rules  which 
govern  society,  offspring  may  be  shorn  of  the  full 
measure  of  their  mental  faculties,  rendering  them 
helpless  and  imbecile.  From  inadvertence,  ignorance, 
or  design,  therefore,  that  which  was  supposed  to 
operate  as  a  blessing  will  operate  as  a  curse,  and 
must  result  in  humiliation  and  misfortune.  If  any 
can  show  just  cause  why  the  pair  at  the  altar  may 
not  lawfully  be  Joined  together,  it  is  a  solemn  duty 
in  some  way  to  make  the  facts  known  before  the 
ceremony  is  performed. 

But  what  is  just  cause  ?  There  are  certain  causes 
Avhich  all  civilized  communities  will  ao;ree  constitute 
a  bar  to  marriage,  and  these  rest,  as  has  been  already 
observed,  upon  grounds  of  natural  reason  or  public 
policy.  But  there  are  other  causes  growing  out  of 
social  prejudice,  or  ecclesiastical  prescription,  involv- 
ing questions  of  taste  or  social  custom,  concerning 
which  opinions  differ  widel}\  At  what  age  may 
children  lawfully  marry  ?  In  England,  under  the 
common  law,  it  is  agreed  that  a  girl  of  twelve  and  a 
boy  of  fourteen  may  consent  to  wed,  and  such  wed- 
ding will  constitute  a  valid  marriage.  Tliis  view  is 
entertained  also  in  some  of  the  Amei'ican  States ; 
while  in  othei's,  tlie  age  of  consent  varies,  as  will  ap- 
pear in  the  following  chapter  relating  especially  to 


WHO  ARE   FORBIDDEN    TO  MARRY.  1 3 

marriage  of  children.  Another  question  "which  has 
given  rise  to  endless  discussion  is,  whether  one  can 
marry  any  of  his  wife's  kindred  after  the  death  of  his 
wife.  Can  a  man  marry  his  deceased  wife's  sister  ? 
Can  he  marry  his  brother's  widow  ?  These  are  causes 
^vhich  some  regard  as  impediments  to  marriage,  while 
others  claim  that  they  furnish  no  such  impediment. 
Where  the  parties  belong  to  different  races,  are  they 
precluded  from  marrying  ?  Can  a  Chinaman,  negro, 
or  an  Indian  intermarry  mtli  a  Caucasian  ?  Is  mis- 
cegenation a  crime  in  morals,  even  Avhere  not 
prohibited  by  law  ?  How  many  drops  of  negro, 
Indian,  or  Chinese  blood  will  bar  the  individual 
from  contracting  marriage  with  a  white  person  ? 
Here  again  opinions  differ  widely,  as  to  whether  the 
cause  existing  by  reason  of  race  or  mixed  blood  con- 
stitutes a  legal  impediment  to  the  marriage.  In  some 
states  and  localities  it  does  not  constitute  a  barrier 
or  disqualification,  while  in  others  such  marriages 
are  not  only  void  absolutely,  but  the  attempt  to 
solemnize  them  constitutes  a  crime  to  which  severe 
penalties  are  attached.  Then  again,  does  difference 
of  faith,  or  religious  training,  constitute  just  cause  to 
prohibit  marriage  ?  Should  a  Christian  marry  an 
infidel  or  a  Hebrew  ;  should  a  pious  one  unite  mth 
one  notoriously  wicked,  without  respect  for  divine 
things ;  or  shall  one  in  communion  with  the  Roman 
Church  wed  a  member  of  the  evangelical  body  of 
Christian  believers  ?  These  inquiries  present  causes 
which  may  or  may  not  operate  as  impediments  to 


14  THE    GEOGRAPHY  OF  MARRIAGE. 

the  marriage,  depending  largely  upon  the  law  of  the 
state  or  country  where  the  marriage  is  performed,  or 
uj)on  the  conscientious  scruples  of  the  individuals 
concerned.  While  the  matter  of  individual  opinion 
on  the  subject  may  involve  a  question  of  taste  or 
faith  to  be  discussed  by  the  casuist,  the  question  as 
to  whether  the  marriage,  if  entered  upon,  will  or 
will  not  be  recognized  in  law,  is  one  which  must  of 
necessity  take  into  account  the  geography  of  the 
situation,  as  a  further  examination  of  the  subject 
will  show. 


CHAPTER  IV. 

MARRIAGE    OF    CHILDREISr. 


"  Duty  demands  the  parents'  voice, 
Should  sanctify  the  daughter's  choice  ; 
In  that  is  due  obedience  shown  ; 
To  choose  belongs  to  her  alone." 


Marriage  is  regarded  in  all  secular  tribunals  in 
ci\alized  countries  as  a  civil  contract.  But  it  is  the 
only  contract  wliicli  persons  who  are  not  of  age  can 
make,  and  which  will  be  binding  upon  them.  Indi- 
viduals, as  a  rule,  are  not  authorized  to  make  ordi- 
nary business  contracts  until  they  reach  the  age  of 
twenty-one.  This  is  the  period  of  life  at  which,  in 
all  civilized  countries,  persons  are  regarded  as  having 
reached  years  of  maturity.  Any  agreement  entered 
into,  or  any  deed  or  paper  signed  by  a  person  under 
twenty-one  (save  perhaps  a  last  mil  and  testament, 
which  in  some  states  can  be  made  by  a  female  at  the 
age  of  eighteen),  has  no  binding  force,  unless  the 
party  after  coming  of  age  chooses  to  ratify  it.  This 
rule,  however,  does  not  apply  to  the  contract  of  mar- 
riage,— the  most  important  engagement  which  the  in- 
dividual can  make.  If  a  girl  twelve  years  old  chooses 
to  marry  a  lad  of  fourteen,  the  contract  is  binding 
and  the  marriage  is  valid,  in  England  and  Scotland, 

15 


1 6  THE    GEOGRAPHY    OF  MARRIAGE. 

or  elsewhere  in  Great  Britain,  and  also  in  Kentucky, 
Louisiana,  New  Hampshire,  Tennessee,  Virginia,  and 
West  Virginia.  The  children,  when  they  arrive  at  the 
age  of  twenty-one,  will  not  be  permitted  to  repudiate 
the  marriage  on  the  ground  that  they  were  not  of 
age  when  w^edded.  For  obvious  reasons,  and  on 
grounds  of  puplic  policy,  such  marriages  must  be 
upheld.  Where  children  are  born  of  such  a  union, 
and  important  property  rights  have  attached  by 
virtue  of  the  relation  of  husband  and  wife  and 
parent  and  child,  it  would  be  cruel  and  unjust  to 
allow  the  married  couple  to  separate,  simply  because 
they  had  reached  a  period  in  life  when  they  are  al- 
lowed to  enter  upon  all  the  duties  and  obligations  in 
the  commercial  world  which  are  incidental  to  man's 
estate.  It  would  be  manifest  injustice  under  such 
circumstances,  to  allow  the  man  to  deprive  his  wife 
of  her  property  rights,  and  to  place  his  offspring  in  a 
condition  before  society  and  the  world,  where  it 
could  be  said  they  were  born  out  of  wedlock,  and 
being  disinherited,  might  become  a  public  charge,  to 
be  supported  by  the  community  at  large. 

This  period  of  life,  then,  at  which  children  may 
lawfully  marry,  is  termed  the  age  of  consent.  It  is 
an  age  at  which  it  will  be  presumed  that  the  couple, 
taking  upon  themselves  the  duties  and  responsibili- 
ties of  husband  and  wife,  are  able  to  comprehend  the 
importance  of  the  state  into  which  they  have  en- 
tered, and  to  understand  the  meaning  of  the  relation 
they  have  assumed.     This  age  of  consent,  then,  is 


MARRIAGE   OF  CHILDREN.  1/ 

fixed,  as  we  liave  said,  in  Great  Britain,  under  what  is 
called  the  common  law,  and  in  some  of  the  American 
States,  in  which  the  rule  of  the  old  English  law  has 
been  adopted,  at  fourteen  on  the  part  of  the  bride- 
groom and  twelve  on  the  part  of  the  bride. 

This  period  is  not  the  result  of  a  mere  arbitrary 
rule,  but  is  dictated  on  account  of  reasons  which 
spring  from  physical  causes,  relating  to  the  time  of 
life  when  it  is  possible  for  a  girl  to  become  a  mother, 
and  a  youth  to  beget  offspring,  although  this 
period  of  development  may  be  reached  earlier  or 
later,  owing  to  climatic  influences  and  physical 
temperament. 

In  certain  parts  of  the  United  States  the  age  of 
consent  is  fixed  at  twelve  and  fourteen  in  females  and 
males  respectively — namely,  in  Kentucky,  Louisiana, 
New  Hampshire,  Tennessee,  Virginia,  and  West 
Virginia.  The  inquiry  naturally  presents  itself  as 
to  whether  there  is  any  other  or  different  rule  in 
other  States  with  regard  to  this  important  question. 
In  some  States  the  ao-e  of  consent  has  been  raised. 
In  New  Mexico,  if  the  groom  is  under  twenty-one  or 
the  bride  is  under  eighteen,  and  they  marry  without 
the  consent  of  parents  or  guardians,  the  law  declares 
the  marriage  invalid.  In  Iowa,  North  Carolina,  and 
Texas  the  ag;e  of  consent  is  fourteen  in  the  case  of 
females  and  sixteen  in  males ;  in  Alabama,  Arkan- 
sas, Georgia,  and  Illinois  the  age  is  fourteen  in 
females  and  seventeen  in  males;  in  California,  Min- 
nesota, Oregon,  and  Wisconsin  the  age  is  fifteen  in 


l8  THE   GEOGRAPHY  OF  MARRIAGE. 

females  and  eighteen  in  males ;  in  Delaware,  Michi- 
gan, Nevada,  Nebraska,  and  Ohio  the  age  is  sixteen 
in  females  and  eighteen  in  males.  In  New  York, 
since  1887,  the  male  must  have  attained  the  age  of 
eighteen  years  and  the  female  sixteen  in  order  to 
give  legal  consent  to  the  marriage,  though  from  1830 
to  1887  the  age  was  twelve  in  females  and  fourteen 
in  males. 

But  in  case  children  marry  who  have  not  attained 
the  age  of  consent,  what  consequences  follow  ?  Or 
suj^pose  it  should  happen  that  one  of  the  parties 
was  old  enough  to  marry  according  to  the  rules 
above  stated,  and  the  other  was  not,  what  remedy 
have  the  parties  ?  It  may  seem  almost  absurd  to  fix 
a  minimum  age  at  which  an  attempted  marriage  is 
void  absolutely,  yet  it  is  stated  by  legal  writers 
upon  this  subject  that  where  neither  party  has 
attained  the  age  of  seven  years,  the  attempted  mar- 
riage is  altogether  null,  and  of  no  force  or  effect,  so 
that  it  cannot  be  ratified  afterwards,  but  there  must 
be  a  new  marriage.  But  if,  after  the  parties  have 
passed  the  age  of  seven  years,  and  they  marry,  the 
marriage  may  be  disaffirmed  by  either  party  when 
he  or  she  reaches  the 'age  of  consent,  and  the  party 
so  desiring  will  be  allowed  to  come  into  a  court  of 
equity  and  have  the  marriage  annulled  on  the 
ground  that  it  was  contracted  before  the  party 
reached  the  age  of  consent.  But  after  the  couple 
have  both  passed  the  age  of  consent,  if  they  continue 
to  live  together  as  husband  and  wife,  they  cannot  be 


MARRIAGE   OF  CHILDREN.  I9 

divorced  on  the  ground  of  non-age,  for  the  reason 
that  they  chose,  after  arriving  at  the  age  of  consent, 
to  ratify  and  affirm  the  marriage  previously  con- 
tracted, and  they  will  be  husband  and  wife  without 
having  the  marriage  ceremony  again  performed.  So 
that  marriages  between  children  under  the  age  of 
consent  may  be  set  aside  and  annulled  when  the  age 
of  consent  is  reached.  The  parties,  however,  by 
living  together  as  husband  and  wife  after  attaining 
that  age,  consent  to  the  union,  and  this  consent  is 
binding  upon  them.  If  one  of  the  parties  to  the 
marriage  is  over  the  age  of  consent  and  the  other  is 
under,  yet  if  the  party  who  was  of  la\^^ul  age  ^vhen  he 
maiTied  chooses  to  disaffirm  the  union  when  the 
other  reaches  the  age  of  consent,  it  is  in  his  or  her 
power,  at  least  in  some  States,  to  do  so,  if  action  is 
taken  promptly.  In  some  States,  however,  such 
marriages  can  only  be  set  aside  at  the  suit  of ^.the 
person  under  the  age  of  consent. 

But  if  children  many  before  reaching  the  age  of 
consent,  but  never  cohabit  or  live  together  as  hus- 
band and  wife,  then,  in  some  States,  the  marriage, 
never  having  been  consummated,  will  be  of  no  force 
or  eifect  whatever  when  the  parties  reach  the  age  of 
consent,  if  they  do  not  choose  to  live  together  there- 
after ;  and  a  divorce  is  not  even  necessary.  This  is 
the  rule  in  Massachusetts,  Michigan,  and  Virginia. 

Marriages  between  minors  frequently  lead  to  serious 
family  troubles,  unless  they  have  been  entered  into 
with  the  knowled2:e  and  consent  of  the  father  or 


20  THE    GEOGRAPHY  OF  MARRIAGE. 

mother,  guardian,  or  other  person  having  the  charge 
or  custody  of  the  parties.  The  disappointment  of 
an  angry  parent  when  a  child  contracts  marriage 
against  his  wishes  or  without  his  knowledge,  leads 
sometimes  to  fatal  consequences,  and  often  develops 
a  melancholy  and  romantic  history,  which  furnishes 
a  constant  theme  for  the  poet  and  dramatist. 

Where  parental  confidence  has  been  abused  or 
violated  on  the  child's  wedding-day,  is  there  no 
remedy,  no  punishment,  no  redress  ?  Must  a  parent 
disinherit  his  wayward  child  in  order  to  retaliate 
the  cruel  blow^,  which  often  results  from  marital  dis- 
obedience of  children,  and  sow  the  seed,  in  a  last 
will  and  testament,  which  produces  its  bitter  fruit 
after  death  has  removed  father  or  mother  from 
earthly  scenes  ?  Does  the  law  place  no  obstacle  in 
the  way  of  youthful  lovers  who  marry  in  spite  of 
their  parents,  or  is  forgiveness  and  reconciliation,  if 
that  is  possible,  the  only  balm  ?  Upon  whom  does 
the  punishment,  if  any,  fall?  Upon  the  minister  or 
magisti'ate  who  performs  the  ceremony,  upon  the 
ofhcer  who  grants  the  license,  or  upon  the  bride  and 
groom  ? 

The  answer  to  these  inquiries,  as  in  other  cases, 
involves  a  question  of  geography.  In  some  localities, 
both  bride  and  groom  are  subjected  to  punishment ; 
in  others,  the  penalty  is  directed  to  the  party  cele- 
brating the  marriage ;  in  others,  to  the  person  issuing 
the  license;  while  in  some  States  and  Territories 
liability  attaches   to  all    concerned,   and   in  a  few 


MARRIAGE   OF  CHILDREN.  21 

instances  the  property  rights  of  the  wife  or  husband 
are  involved. 

The  consequences  which  follow  the  marriage  of 
children  without  the  consent  of  parents  or  guardians 
will  now  be  considered. 


CHAPTER  V. 


CONSEQUET^CE    OF    CHILDREJST    MAERYHSTG    WITHOUT   OON"- 
SEISTT    OF    PARENTS. 


"  If  there  be  a  human  tear 
From  passion's  dross  refined  and  clear, 
'T  is  that  which  pious  fathers  shed 
Upon  a  duteous  daughter's  head." 

Scott. 

As  lias  been  shown,  children,  when  they  arrive  at 
the  age,  termed  for  convenience  the  age  of  consent, 
are  capable  of  contracting  a  valid  marriage,  even 
without  the  consent  of  parents  or  guardians.  In  a 
great  majority  of  States,  however,  ministers  and 
magistrates  are  forbidden  to  perform  the  ceremony, 
and  officers  are  prohibited  from  issuing  a  license  to 
children  who  are  old  enough  to  contract  marriage, 
though  not  of  full  age,  without  the  consent  of  their 
parents  or  guardians,  either  verbal  or  in  writing,  first 
obtained,  unless  they  have  been  married  before.  If, 
however,  the  marriage  takes  place  without  such  con- 
sent, or  even  without  a  license,  the  failure  to  ])rocure 
the  license  or  to  get  the  parents'  sanction  will  not,  as 
a  rule,  invalidate  the  marriage,  but  the  punishment 
for  violating  the  law  must  fall  on  the  minister  or 
magistrate  who  officiated  at  the  wedding,  or  upon 


MARRIAGE   OF   CHILDREN.  23 

the  officer  issuing  the  license  without  first  requiring 
such  consent,  and  in  some  few  instances  the  property 
of  the  wife  will  pass  into  the  hands  of  a  receiver. 

The  legislation  in  Virginia,  West  Virginia,  and 
Kentucky  seems  to  regard  secret  marriages  as  an 
attempt  on  the  part  of  an  ambitious  suitor  to  mend 
his  fortune  by  contracting  marriage  with  wealthy 
children  contrary  to  the  wishes  of  parents,  and  the 
law  in  those  States  is  aimed  to  defeat,  and  thwart 
altogether,  any  such  selfish  design.  Where  a  young 
girl  has  property  in  her  own  right,  and  her  hand  is 
sought  or  a  runaway  marriage  is  planned  by  some 
cunning  wooer  with  an  eye  to  secure  his  wife's 
fortune,  while  he  might  succeed  in  some  parts  of  the 
country,  he  "will  utterly  fail  in  the  States  above 
mentioned.  A  secret  engagement  in  such  a  case 
deprives  one  of  tender  years  of  the  benefit  of  paternal 
counsel  and  advice,  and  in  this  view  the  law  has 
thrown  a  partial  safeguard  by  way  of  protection 
against  the  rashness  and  folly  of  youth.  It  is 
declared  in  Virginia  and  West  Virginia,  if  the  child 
is  over  twelve  and  under  fourteen,  and  marries  with- 
out the  consent  of  the  parents,  and  has  property  in 
her  own  right,  proceedings  may  be  instituted  on  the 
part  of  parents,  guardians,  or  next  friend,  to  have 
the  property  of  the  bride  placed  in  the  hands  of  a 
receiver,  and  thus  defeat  the  designs  of  an  avari- 
cious husband  who  may  have  sought  the  marriage  in 
order  to  secure  the  control  of  the  girl's  estate.  This 
result  follows   in  Kentucky  if  the  bride  is  under 


24  THE    GEOGRAPHY   OF  MARRIAGE. 

sixteen,  and  the  receivership  in  both  Kentucky  and 
West  Virginia  will  continue  until  she  is  of  the  age 
of  twenty-one,  and  then  the  property  must  be 
delivered  to  liei\  unless  the  court  deems  it  prudent 
to  longer  continue  the  receivership.  But  in  Virginia 
the  receivership  will  continue  during  marriage,  and 
if  the  wife  should  die  first,  then  the  estate  would 
go  to  her  relatives,  but  never  to  the  husband.  The 
officer  issuing  a  license  to  a  person  under  twenty-one, 
in  Kentucky,  knowingly,  without  consent  of  parents 
or  guardians,  or  without  taking  a  bond,  may  be  fined 
not  less  than  five  hundred  nor  more  than  one  thou- 
sand dollars,  and  expelled  from  office,  and  the 
celebrant  may  be  imprisoned  not  less  than  a  month 
nor  more  than  a  year,  or  fined  not  more  than  one 
thousand  dollars,  or  both ;  and  the  bond  of  the 
groom,  if  he  has  given  one,  as  required,  will  be 
forfeited.  These  stringent  provisions,  as  a  rule, 
never  apply  in  any  State  or  Territory  to  children  who 
have  been  previously  married. 

In  this  connection  it  will  be  necessaiy  only  to 
name  some  of  the  remainins:  States  where  the  most 
severe  punishment  attaches,  in  comparison  with 
those  where  the  punishment  is  very  light,  because 
the  subject  will  receive  further  attention  when  the 
duties  and  liabilities  of  clergymen  and  magistrates 
come  to  be  considered.  In  Florida,  before  perform- 
ing the  marriage  ceremony,  if  the  celebrant  fails  to 
require  the  couple  before  him  to  produce  a  marriage 
license,  his  negligence  may  cost  him  one  thousand 


MARRIAGE   OF  CHILDREN.  2$ 

dollars.  Tlie  amount  of  tlie  fine,  however,  is  in  the 
discretion  of  the  court,  and  the  sum  named  is  the 
maximum  amount,  and  there  being  no  minimum,  it 
is  in  the  power  of  the  court  to  make  the  fine  nominal, 
should  the  cii'cumstances  surrounding  the  case  author- 
ize him  to  do  so.  The  punishment  may  be  meted 
out  to  the  County  Clerk  in  Nevada,  should  he  be  so 
unfortunate  as  to  issue  a  marriao-e  license  to  a  srroom 
under  eighteen  or  a  bride  under  sixteen — provided 
neither  proves  to  be  a  widow  or  widower — without 
the  consent  of  parent  or  guardian  given  personally 
or  in  writing.  As  in  Florida,  however,  one  thousand 
dollars  is  the  maximum  fine,  with  no  minimum, 
leaving  the  amount  to  be  fixed  by  the  court  in  the 
exercise  of  its  sound  discretion. 

Likewise  in  Minnesota,  the  Clerk  of  the  District 
Court,  whose  duty  it  is  to  issue  the  license,  should 
he  neglect  to  comply  with  the  legal  formalities  re- 
quired of  him,  will  be  subject  to  the  same  forfeiture. 
If  either  party  is  a  minor,  he  must  be  careful  to 
get  the  personal  consent  of  parents  or  guardians,  or 
such  written  consent  attested  by  at  least  two  wit- 
nesses, one  of  whom  must  make  oath  before  the 
Clerk  as  to  the  genuineness  of  the  signatures  attached 
to  it.  The  rule  applies  in  Pennsylvania  to  the  Clerk 
of  the  Orphan's  Court,  who  is  the  individual  in  that 
State  upon  whom  devolves  the  perilous  duty  of 
issuing  the  license.  In  other  States  the  fine  must 
not  exceed  five  hundred  dollars,  as  in  Colorado, 
Georgia,  and  Nebraska.     Some  States  add  imprison- 


26  THE    GEOGRAPHY  OF  MARRIAGE. 

meut,  as  lias  been  sliown  in  regard  to  Kentucky  ; 
also  in  Kansas,  Missouri,  Nebraska,  North  Carolina, 
Oregon,  and  Wisconsin  ;  but  the  punishment  may  be 
in  the  alternative — either  fine  or  imprisonment.  In 
Missouri,  however,  the  celebrant  ^vho  officiates  at 
the  wedding  of  a  minor  to  which  the  consent  of  the 
father,  if  living,  has  not  been  given,  or,  if  he  is  dead, 
or  incapacitated,  or  not  living  with  his  family,  the 
consent  of  the  mother  or  guardian,  is  liable  to  forfeit 
three  hundred  dollars,  to  be  recovered  in  a  civil  action, 
and  is  subject  also  to  indictment,  and  may,  on  con- 
viction, be  imprisoned  not  exceeding  six  months  nor 
less  than  one  month.  The  celebrant,  in  Vermont, 
who  performs  the  wedding  ceremony  without  first 
requiring  the  marriage  license,  may  be  fined  not  less 
than  ten  dollars. 

In  Tennessee  the  law  seems  to  be  silent  as  to  the 
age  of  consent ;  but  in  that  State  the  groom  must 
give  bonds,  with  sufficient  surety,  in  the  sum  of 
twelve  hundred  and  fifty  dollars  before  he  can  get 
his  marriao^e  license.  The  condition  of  the  bond  is 
that  there  is  no  lawful  cause  to  obstruct  the  marriage, 
and  if  it  turi^s  out  that  there  was  no  consent  given 
to  the  marriage  of  the  parties,  the  bondsmen  would 
be  compelled  to  pay  the  bond,  if  a  court  should  de- 
cide that  such  consent  ^vas  a  lawful  cause  of  obstruc- 
tion. It  is  extremely  doubtful  whether  failure  to  get 
the  consent  of  the  parents  would  constitute  any  legal 
impediment  to  the  marriage,  unless  there  was  an 
express  act  of  the;  legislature,  declaring  that  such 


MARRIAGE   OF  CHILDREN.  2 7 

consent  must  be  had  as  a  condition  to  the  right  to 
marry. 

It  will  be  observed,  therefore,  that  while  children 
may  lawfully  marry,  the  mere  fact  that  such  mar- 
riages are  valid  will  not  always  excuse  the  officer 
who  licensed  them,  or  the  clergyman,  priest,  or 
magistrate  who  performed  the  ceremony.  Since  the 
liability  which  ministers  and  others  incur  may  also 
arise,  even  where  the  bride  and  groom  are  of  full  age, 
the  subject  will  be  further  discussed  in  considering 
the  duties  and  liabilities  of  clergymen  and  magistrates. 

Thus  far  it  has  been  shown  what  consequences 
fall  upon  persons  other  than  the  bride  and  groom, 
in  cases  of  runaway  or  secret  marriages,  where  the 
parties  have  not  reached  years  of  discretion.  There 
are  circumstances,  however,  when  clandestine  mar- 
riages are  regarded  as  criminal  in  the  eye  of  the  law, 
and  where  the  impetuous  youth  who  steals  his  bride 
becomes  a  kidnapper  and  abductor,  and  may  be 
punished  as  such.  The  question  as  to  the  legality 
of  such  marriages,  and  as  to  the  punishment,  if  any, 
which  attaches  to  them,  involves,  as  in  other  cases, 
a  question  of  geography.  The  rule,  therefore, 
with  regard  to  clandestine  marriages  will  now  be 
considered. 


CHAPTEE  yi. 

CLANDESTINE    MAERIAGES   AND   RUNAWAY   MATCHES. 


Youth  is  nimble  ;  age  is  lame  ; 

Youth  is  hot  and  bold  ;  age  is  weak  and  cold  ; 

Youth  is  wild,  and  age  is  tame. 

Shakespeare. 

The  States  in  which  the  stealing  of  a  bride  is 
regarded  as  a  criminal  offence  are  comparatively 
few.  It  sometimes  happens,  that  a  chivalrous  suitor, 
entices  his  sweetheart  to  climb  from  the  balcony 
window,  in  the  pale  light  of  the  moon,  beneath  the 
tender  influences  of  the  stars,  and  accompanies  her 
stealthily,  through  foliage  and  shrubbery,  or  over 
fields  and  fragrant  gardens,  or  along  silent  streets  or 
highways  to  the  chosen  rendezvous  where  the  secret 
ceremony  is  to  be  performed.  Whether,  in  so  doing, 
the  daring  lover  commits  a  crime,  or  whether  such 
conduct,  while  not  sanctioned,  remains  uncondemned, 
and  passes  simply  as  romance,  under  the  trite  maxim 
that  "  all  is  fair  in  love  and  war,"  will  not  turn  upon 
a  question  of  sentiment,  but  of  geography.  Where 
did  the  ardent  lover  woo  the  youthful  maiden,  and 
within  what  State  did  he  encounter  so  many  serious 
difficulties  ?  This  is  the  important  inquiry  in  the 
solution  of  the  question  upon  which  his  liberty,  his 

28 


CLANDESTINE  MARRIAGES.  29 

name,  reputation,  and  domestic  happiness  perhaps 
will  depend.  The  geographical  limits  within  which 
bride-stealing,  under  certain  limitations,  is  declared  to 
be  a  crime,  is  embraced  within  the  territory  covered 
by  the  States  of  Florida,  Massachusetts,  Michigan, 
New  York,  New  Jersey,  North  Carolina,  South  Caro- 
lina, Texas,  and  the  Territory  of  New  Mexico.  And 
yet  so  differently  are  the  laws  framed  that  what 
would  be  abduction  or  matrimonial  kidnapping  in 
some  of  these  localities,  would  not  fall  under  the 
statutory  prohibition  in  another ;  and  if  the  bride  en- 
ticed to  the  altar  is  over  sixteen  years  of  age,  it  will 
not  be  regarded  as  criminal  in  any  of  the  States  or  Ter- 
ritories mentioned,  nor  anywhere  within  the  United 
States.  In  Florida,  Massachusetts,  Michigan,  New 
York,  and  South  Carolina,  if  the  bride  is  under  six- 
teen, the  statute  applies.  In  New  Jersey,  however, 
a  bride  of  sixteen,  or  who  is  not  under  fifteen,  may 
be  successfully  kidnapped;  while  in  North  Caro- 
lina, New  Mexico,  and  Texas  she  must  be  under 
fourteen  in  order  to  fall  within  the  statute  of  clan- 
destine marriao'es. 

It  should  be  here  observed  that,  in  speaking  of 
clandestine  marriages,  espousals  where  force  is  used, 
or  where  women  have  been  detained  for  immoral 
purposes,  are  not  considered.  In  every  State  in  the 
Union  severe  penalties  are  prescribed  to  punish 
criminals  where  abduction,  ravishment,  or  immoral- 
ity is  practised,  and  in  the  law  of  Arkansas  it  is 
specifically  declared  that  whoever  "  shall  take  un- 


30  THE    GEOGRAPHY  OF  MARRIAGE. 

la^vfully  and  against  her  will  any  woman,  and  by 
force,  duress,  or  menace  compel  her  to  marry  him, 
or  to  marry  any  other  person,  or  to  be  defiled,  shall 
suffer  death."  Indeed,  it  might  be  well  if  such 
heinous  offences  against  the  sex,  more  aggravating 
and  cruel  even  than  the  crime  of  murder,  were  as 
severely  dealt  with  in  other  places.  Arkansas,  in 
this  regard,  has  set  a  wholesome  example  to  her 
sister  States.  But  all  of  them  have  enacted  laws 
punishing  such  marital  outrages  more  or  less  severely. 
In  this  chapter,  however,  it  is  intended  to  treat 
simply  of  clandestine  marriages,  where  they  have 
been  declared  criminal  in  the  eye  of  the  law. 

Not  every  secret  runaway  match  or  clandestine 
marriage  is  punishable  as  a  crime,  but  only  such  as 
involve  the  destinies  of  children  of  extremely  tender 
years ;  and  the  law  nowhere  applies  to  such,  in  cases 
where  the  runaway  bride  is  over  sixteen  years  of 
age.  But  as  to  the  magistrate  who  issued  the 
license,  or  the  minister  or  magistrate  who  performed 
the  ceremony,  the  rule  might  be  different. 

Owing  to  the  severe  parental  restrictions  which 
exist  in  England,  it  was  formerly  quite  common 
to  hear  of  runaway  matches,  where  the  lovers  re- 
paired to  Scotland  in  order  to  consummate  the 
marriage,  in  accordance  with  the  simple  provisions 
of  the  laws  which  prevail  in  that  country,  where 
any  person,  whether  magistrate,  clergyman,  or  lay- 
man, may  perform  the  ceremony.  The  famous  resort 
for  these  runaway  lovers  was  a  place  close  to  the 


CLANDESTINE   MARRIAGES.  31 

Scottish  line,  called  Gretna  Green,  where  an  old 
blacksmith  was  accustomed  to  officiate  in  these 
affairs  of  the  heart ;  and  the  history  of  that  Scottish 
town  is  replete  with  the  most  exciting  and  romantic 
adventui'es,  experienced  by  lovers  who  sought  the 
borders  of  Scotland,  to  make  good  the  betrothal 
which  stern  and  unrelenting  parents  had  forbidden. 
Some  of  the  great  men  of  England  were  married  at 
Gretna  Green,  and  other  places  in  Scotland  just 
across  the  border.  Among  them,  no  less  a  personage 
than  Lord  Eldon,  the  famous  English  Chancellor, 
and  brother  of  the  celebrated  canonist  Lord  Stowell, 
who  carried  off  a  banker's  daughter,  having  with  the 
aid  of  a  ladder  spirited  her  away  from  her  father's 
house,  and  fled  across  the  border  to  Blackshiels, 
where  they  were  married.  Another  exciting  story  is 
told  of  an  English  gentleman,  who  was  carried  away 
Avith  the  personal  charms  of  his  bride,  and  deter- 
mined to  wed  her  in  spite  of  every  obstacle.  No 
sooner,  however,  had  the  lovers  set  out  for  Scotland 
than  the  secret  was  discovered,  and  the  enraged 
father  of  the  bride  pursued  the  runaways  with  coach 
and  pair  at  a  break-neck  pace.  When  the  bride  and 
groom  had  almost  reached  the  Scottish  line,  the 
pursuing  parent  came  within  sight,  driving  at  a 
furious  rate,  and  lashing  on  his  horses,  determined,  if 
possible,  to  prevent  the  marriage.  The  groom,  how- 
ever, not  wishing  to  inflict  bodily  injury  on  his 
prospective  father-in-law,  yet  determined  to  out- 
general him.     He  coolly  directed  his  footman,  when 


32  THE   GEOGRAPHY  OF  MARRIAGE, 

the  team  of  tlie  pursuers  had  gained  on  liini  suffi- 
ciently, to  take  a  pair  of  loaded  pistols,  with  which 
he  was  provided,  and  to  shoot  dead  the  old  man's 
horses.  This  simple  device  was  cai-ried  out  to  the 
letter,  and  the  ingenious  lover  galloped  off  into 
Scotland  with  his  bride,  and  was  married.  Human 
nature  is  the  same  everywhere.  Horace  sagely 
observes  with  exquisite  poetic  grace — 

"  Coelum,  non  aniniam,  mutant,  qui  trans  mare  currunt." 

There  have  been  clandestine  marriao-es  and  run- 
away  matches  in  the  past,  and,  unless  human  nature 
changes,  they  will  continue  to  occur,  more  or  less 
frequently. 

Some  distinguished  figures  in  American  history 
have  courted  their  wives  under  circumstances  no  less 
romantic  and  exciting  than  those  referred  to  in 
England  and  Scotland.  General  Knox,  one  of  the 
conspicuous  artillery  officers  in  Washington's  army, 
married  the  daughter  of  the  provincial  Secretary  of 
Massachusetts,  in  spite  of  the  opposition  of  the 
bride's  parents.  She  seemed  to  possess  all  the  pat- 
riotism, dash,  and  spirit  of  her  daring  husband,  and 
shortly  after  the  battle  of  Bunker-Hill,  aided  him  in 
eluding  the  vigilance  of  the  guards  of  General  Gage's 
army  in  Boston ;  and  having  concealed  his  sword  in 
the  folds  of  her  dress,  the  couple  made  good  their 
escape.  He  arrived  in  Cambridge  in  time  to  partici- 
pate in  the  siege  of  Boston.  Knox  Avas  a  favorite 
of  Washington,  and  while  acting  in  his  cabinet  as 


CLANDESTINE  MARRIAGES.  33 

Secretary  of  War,  liis  gifted  wife,  wliose  talents  and 
accomplisliments  were  noted,  held  a  foremost  position 
in  social  circles  at  the  capital.  Doubtless  Commodore 
Porter  would  have  run  away  with  his  bride  had  not 
her  father  given  his  consent,  which  was  at  first  flatly 
refused  the  young  naval  officer.  The  Commodore 
later  received  a  handsome  residence  on  the  banks  of 
the  Delaware  as  a  reward  for  his  importunity  in 
seeking  the  hand  of  his  handsome  bride,  which  was 
given  the  lovers  on  their  wedding-day. 

Jefferson  Davis  courted  the  dauo*hter  of  General 
Taylor,  but  the  stern  old  soldier  bluntly  forbade 
the  match.  The  result  was  an  elopement,  and 
it  is  said  the  father-in-law  never  forgave  his  way- 
ward son  until  captivated  with  his  daring  cour- 
age on  the  battle-field  of  Buena  Vista.  John  C. 
Fremont,  the  first  candidate  of  the  Republican  party 
for  President  of  the  United  States,  could  not  resist 
the  charms  of  Miss  Jessie  Benton,  the  daughter 
of  the  distinguished  Senator  from  Missoi^ri;  but 
notmthstanding  his  brilliancy  and  diplomacy,  young 
Fremont  could  not  win  the  consent  of  the  Senator 
in  his  suit  for  the  hand  of  his  daughter.  The 
parents'  refusal,  however,  could  never  operate  as  a 
bar  to  the  desire  of  the  determined  lover,  and 
although  the  Avedded  life  of  General  Fremont  began 
with  an  elopement,  the  union  was  a  happy  one,  of 
which  Senator  Benton,  after  his  reconciliation  with 
the  couple,  was  always  proud. 

Legislatures   can   frame   no   statutes    which   can 


34  THE    GEOGRAPHY  OF  MARRIAGE. 

evade  tlie  shafts  of  Cupid,  nor  have  siicli  laws  been 
attempted.  The  only  object  of  the  legislation  on 
this  subject  is  intended  to  restrain  the  rashness 
and  folly  of  children,  too  young  to  form  any  sober, 
j^rudent  judgment  upon  matters  concerning  their 
domestic  welfare.  The  law  so  far  as  it  relates  to 
clandestine  marriages,  wherein  the  runaway  bride  is 
under  sixteen,  is  wise  and  wholesome  legislation,  and 
deserves  to  be  encouraged. 

In  Florida  the  enticement  of  the  bride,  under  six- 
teen, from  her  father's  house,  or  wherever  else  she 
may  be  found,  for  the  purpose  of  effecting  a  clandes- 
tine marriage,  if  done  fraudulently  and  deceitfully, 
constitutes  an  offence.  Perhaps  any  enticement, 
without  the  knowledge  and  consent  of  parents  or 
guardians,  would  be  fraudulent  and  deceitful,  so  far 
as  the  parents  are  concerned,  while  the  girl  might  go 
voluntarily  and  of  her  own  free  will.  The  punish- 
-ment  for  the  offence  is  imprisonment  not  exceeding 
one  yeaj,  or  fine  not  exceeding  one  thousand  dollars, 
or  both  fine  and  imprisonment  in  the  county  jail. 
The  law  in  Massachusetts  is  quite  similar  to  that  in 
Florida,  with  the  same  punishment.  The  Massachu- 
setts law,  however,  punishes  also  whoever  aids  and 
abets  such  clandestine  marriage.  In  Michigan,  any 
one  who  entices  a  girl  under  sixteen  from  her  j^arents 
or  guardians,  without  their  consent,  in  order  to 
marry  her,  may,  on  conviction,  be  imprisoned  in  the 
penitentiary  not  exceeding  three  years,  or  fined  not 
exceeding  one   thousand  dollars.     In  New  Jersey, 


CLANDESTINE  MARRIAGES.  35 

wlioever  unlawfully  conveys  or  takes  a  woman-child 
within  the  age  of  fifteen  years  from  the  possession, 
custody,  or  governance,  and  against  the  will,  of 
parents  or  guardians,  though  ^vith  the  child's  con- 
sent, with  intent  to  contract  matrimony  with  her,  is 
guilty  of  a  high  misdemeanor,  and  may  be  fined  not 
exceeding  one  thousand  dollars,  and  imprisoned  at 
labor  not  exceeding  five  years,  or  either,  and  the 
marriage  shall  be  void.  In  North  Carolina,  clandes- 
tine marriages  are  simply  covered  by  the  declaration 
that  marrying  a  female  under  the  age  of  fourteen 
years  is  a  misdemeanor.  Of  course  this  result 
follows  in  that  State,  whether  such  a  marriage  with 
a  girl  so  young  was  celebrated  openly  or  secretly,  or 
with  or  without  the  parents'  consent.  The  marriage 
is  declared  void.  In  New  Mexico,  the  bride,  in 
order  to  fall  within  the  rule  of  secret  or  clandestine 
marriages,  must  be  under  fourteen.  The  punishment 
is  imprisonment  not  more  than  five  years,  or  fine  not 
less  than  one  thousand  dollars,  or  both ;  and^the  mar- 
riage is  void.  In  Texas,  if  the  girl  is  under  fourteen, 
the  crime  of  abduction  is  made  out,  if  she  is  only 
detained,  though  afterwards  released,  without  mar- 
riage or  immorality,  provided  such  detention  shall 
continue  for  so  long  a  period  as  twelve  hours,  whether 
the  child  consents  or  not.  The  punishment  is  by  fine 
not  exceeding  two  thousand  dollars. 

In  South  Carolina,  where  consent  will  constitute 
marriage,  made  by  the  parties  themselves,  without 
the  intervention  of  priest  or  magistrate,  it  is  declared 


36  THE    GEOGRAPHY  OF  MARRIAGE. 

that  if  any  person  shall  take  away  or  cause  to  be 
taken  away  any  woman-cliild  within  the  age  of  six- 
teen, without  the  knowledge  or  consent  of  the  father, 
if  living,  or  of  the  mother  if  the  father  be  dead, 
and  shall  by  secret  letters,  messages,  or  otherwise, 
contract  matrimony  with  her,  shall  on  conviction  be 
imprisoned  five  years,  or  shall  be  adjudged  to  pay 
a  fine,  one  half  of  which  shall  go  to  the  State  and 
the  other  half  to  the  parties  aggrieved.  The  statute, 
however,  does  not  fix  the  amount  of  the  fine  nor 
prescribe  a  maximum  or  minimum  figure. 

The  punishment  follows  in  the  various  States 
named,  and  elsewhere  throughout  the  United  States, 
where  marriage  is  not  intended,  but  immorality  only. 

Thus  it  will  be  seen  what  efforts  have  been  made 
throughout  the  United  States  to  punish  clandestine 
marriages  and  runaway  matches,  ^vhere  the  bride  has 
not  passed  the  tender  years  of  childhood. 


CHAPTER  VII. 

FOEBIDDEISr   MAEEIAGES    AMOJfG    BLOOD    EELATIVES. 
MAEEIAGE    OE    COUSINS. 


"  'Cause  grace  and  virtue  are  within 
Prohibited  degrees  of  kin  ; 
And  therefore  no  true  saint  allows 
They  shall  be  suffered  to  espouse." 

Butler. 


Maeeiage  prohibitions  on  account  of  blood  or 
kinship  were  not  recognized  among  the  nations  and 
tribes  who  first  occupied  the  globe.  The  weight  of 
opinion  among  scientists  would  seem  to  regard  com- 
munal marriage  as  the  most  archaic.  Under  this 
primitive  system,  as  understood  and  explained  by 
antiquaries,  no  man  could  appropriate  a  woman  en- 
tirely to  himself  without  infringing  upon  the  rights 
of  his  comrades  or  fellow-clansmen  dwelling  together 
in  those  rude  ages  in  the  same  community.  Such  an 
act,  says  Sir  John  Lubbock,  in  his  "  Origin  of  Civili- 
zation and  the  Primitive  Condition  of  Man,"  would 
naturally  be  looked  upon  with  Jealousy,  and  only 
regarded  as  justifiable  under  peculiar  circumstances. 
Communal  marriage  within  the  tribe,  as  distinguished 
from  individual  marriage,  of  necessity  rendered  men 
indifferent  to  ties  of  blood  and  kinship.     They  mar- 

37 


38  THE    GEOGRAPHY  OF  MARRIAGE. 

I'ied  within  their  own  groups  or  families — a  custom 
which  has  been  designated  endogamy,  as  distinguished 
from  exogamy,  or  marriage  out  of  the  tribe.  It  is 
conjectured  also,  by  distinguished  biologists,  that  this 
primitive  form  of  communal  marriage  finally  yielded 
to  individual  marriage  and  the  practice  of  exogamy. 
In  view  of  the  fact  that  wives  were  universally  the 
subject  either  of  purchase  or  capture,  Lubbock,  in 
the  work  referred  to,  argues  that  there  is  abundant 
evidence  to  show  that  "  the  origin  of  marriage  was 
independent  of  all  sacred  and  social  considerations ; 
that  it  had  nothing  to  do  with  mutual  affection  or 
sympathy ;  that  it  was  invalidated  b}^  any  appear- 
ance of  consent ;  and  that  it  was  symbolized  not  by 
any  demonstration  of  warm  affection  on  the  one  side 
and  tender  devotion  on  the  other,  but  by  brute 
violence  and  unwilling  submission."  He  concludes, 
therefore,  that  while  individual  marriage,  so  far  as 
the  women  of  the  tribe  were  concerned,  would  be 
regarded  as  an  infringement  of  communal  rights,  this 
infringement  could  not  be  claimed  in  the  case  of  fe- 
male captives  taken  in  war.  The  warrior,  if  he  saw 
fit,  might  put  his  captive  to  death;  or,  if  it  suited 
his  caprice,  he  might  keep  her  alive,  without  infrin- 
ging upon  the  I'ights  of  his  comrades-in-arms,  since 
he  alone,  by  his  individual  prowess,  or  by  allotment, 
perhaps,  in  case  a  number  were  made  captives,  would 
be  entitled  to  her  exclusively. 

There  is  indeed  strong  proof  that  endogamy  pre- 
vailed among  the  Hebrews.    From  the  account  given 


FORBIDDEN  MARRIAGES.  39 

in  the  twenty-second  chapter  of  the  Book  of  Judges, 
\\Q  learn  that  the  practice  of  procuring  wives  by  cap- 
ture was  resorted  to  by  the  tribe  of  Benjamin,  after 
the  oath  taken  at  Mizpeh,  whereby  the  children  of 
Israel  were  forbidden  to  give  their  daughters  in 
marriage  to  the  Benjamites.  The  latter  then  resorted 
to  the  custom  which  doubtless  prevailed  in  that  age, 
of  securing  wives  by  capture ;  and  carried  off  by  force 
what  number  of  brides  they  desired  of  the  daughters 
of  Shiloh.  This  historical  incident  clearly  indicates 
that  exogamy  was  resorted  to  by  the  Israelites  in  the 
tribe  of  Benjamin  not  from  choice  but  from  neces- 
sity. The  custom  of  securing  wives  either  by  pur- 
chase or  capture  still  prevails  among  the  savage  and 
barbarous  tribes  in  the  remote  and  uncivilized  por- 
tions of  the  globe. 

Thus  it  seems  clear  that  in  the  early  history  of  the 
Hebrews,  as  well  as  other  nations  in  those  remote 
times,  there  was  no  prohibition  against  marriage 
on  the  ground  of  consanguinity.  The  first  re- 
strictions seem  to  have  been  prescribed  by  Moses, 
the  great  law-giver  of  the  Jewish  people,  who  for- 
bade marriage  between  near  kin  of  the  same  blood 
within  certain  degrees  of  consanguinity,  and  these 
salutary  restraints  were  to  a  certain  extent  sanc- 
tioned and  adopted  by  the  Greeks  and  Romans. 
Other  nations  of  antiquity,  however,  seem  to  have 
married  their  kindred  without  reo-ard  to  ties  of  con- 
sanguinity.  The  Egyptians  and  Arabians,  Medes 
and     Persians,    Parthians   and    Scythians,    and   the 


40  THE    GEOGRAPHY  OF  MARRIAGE. 

inliabitants  of  Ethiopia  were  accustomed  to  marry 
tlieir  nearest  relatives.  Some  ancient  writers,  and 
among  them  Strabo  and  Herodotus,  charge  that  the 
Persians,  and  pai'ticularly  the  Magi,  distinguished 
among  their  people  for  learning  and  refinement,  were 
accustomed  to  marry  tlieir  mothers,  their  sisters,  and 
their  daughters,  and  considered  the  offspring  of  such 
marriages  most  noble,  and  worthy  of  the  highest 
sovereign  authority.  Indeed,  it  is  said  that  Zoroas- 
ter, the  most  revered  of  all  the  prophets  of  this  strange 
people,  commended  and  sanctioned  such  marriages,  and 
taught  that,  above  all  other  alliances,  those  between 
first  cousins  were  most  deserving  the  reward  of  heaven. 
The  Jews,  before  the  time  of  Moses,  married  near 
relatives  and  j)ractised  consanguineous  marriages,  like 
the  Canaanites  and  other  tribes  which  dwelt  in  the 
land  about  them.  Adam's  children,  doubtless,  inter- 
married ;  Abraham  married  his  half  sister ;  his 
brother  Nahor  wedded  his  niece,  the  daughter  of 
another  brother ;  Jacob  married  the  sisters  Kachael 
and  Leah,  who  were  his  cousins ;  Esau's  wife  was 
his  cousin,  Judah's  his  daughter-in-law,  the  widow  of 
his  own  son.  Amram,  the  father  of  Moses,  mar- 
i-ied  Jochebed,  a  paternal  aunt.  But  Amram's  son, 
in  tlie  Levitical  law,  ])]'()hibited  marriage  among 
lineal  kindred  of  near  blood,  and  declared  such 
practices  as  prevailed  in  this  respect  among  the 
savafje  tribes  of  idolaters,  as  a  wickedness  and 
abomination  in  the  sight  of  God.  By  this  Jewish 
law,  a  Hebrew  was  forbidden  to  marry  his  mother, 


FORBIDDEN  MARRIAGES.  4I 

or  his  sister,  or  his  daughter,  or  his  aunt ;  and  a 
woman  likewise  was  forbidden  to  marry  her  father, 
or  her  brother,  her  son,  or  her  uncle,  and  the  rule 
extended  so  as  to  declare  unlawful  all  marriages 
among  blood  relatives  nearer  than  first  cousins. 

In  view  of  the  odium  and  detestation  of  consan- 
guineous marriages  among  modern  nations,  it  has 
been  declared  that  they  are  contrary  as  well  to  the 
law  of  nature  as  to  divine  ordinance,  and  that,  as  a 
result  of  this  violation  of  natural  law,  they  produce 
all  ^orts  of  mental  and  physical  infirmity.  Sterility, 
physical  malformations,  diseases  of  the  mind  and  of 
the  senses,  rickets,  albinoism,  and  a  long  list  of  other 
distressing  maladies  are  said  to  be  the  legitimate 
fruits  of  these  unnatural  alliances.  How  far  these 
charges  can  be  sustained  as  scientific  facts  seems  to 
be  wholly  a  matter  of  speculation.  The  offspring  of 
such  marriages  among  the  ancients  were,  many  of 
them,  persons  of  distinction  and  eminence,  not  only 
by  the  accident  of  birth,  but  by  reason  of  mental 
and  physical  superiority  ;  nor  can  it  be  shown  that 
the  royal  family  in  the  reigning  houses  of  Persia, 
Arabia,  Egypt,  or  other  countries  where  such  mar- 
riages were  common,  especially  among  the  nobility, 
were  afilicted  to  any  greater  extent  than  ordinarily 
prevailed  elsewhere.  Cleopatra,  the  most  romantic, 
perhaps,  of  the  ancient  sovereigns,  was  the  daughter 
of  a  brother  and  sister,  great-granddaughter  of 
another  brother  and  sister,  and  a  great-great-grand- 
daughter of  Bernice,  who  was  both  cousin  and  half- 


42  THE    GEOGRAPHY  OF  MARRIAGE. 

sister  to  lier  liusband.  She,  in  accordance  with  the 
custom  which  prevailed  in  the  time  of  the  Ptolemies, 
wedded  her  younger  brother.  Yet  it  has  never  been 
charged  that  the  Egyptian  queen  was  deficient  in 
mental  or  physical  qualities ;  and  judging  from  the 
character  of  her  suitors,  she  possessed  charms  and  ac- 
complishments superior  to  any  of  her  sex.  Caesar  could 
not  resist  her  wiles  and  blandishments,  and  Caesar's 
friend,  one  of  the  greatest  soldiers  and  orators  of 
antiquity,  blinded  by  her  allurements,  neglected  the 
sovereignty  of  the  world,  and  willingly  surrendered 
his  life  for  her  sake. 

But  whatever  may  have  been  the  custom  among 
primitive  people,  who  belonged  to  exclusive  tribes, 
and  dwelt  in  tents,  who  married  and  intermarried 
among  themselves ;  or  whatever  may  have  been  the 
practices  which  prevailed  among  the  moi-e  ambitious 
heathen  and  idolatrous  nations  skilled  in  art  and 
architecture,  who  built  cities  and  adorned  them  with 
grand  edifices,  the  ruins  of  which  still  challenge  the 
wonder  of  mankind,  certain  it  is  that  among  mod- 
ern nations  consanguineous  marriages  are  regarded 
as  relics  of  barbarism  and  moral  darkness. 

It  will  be  observed  that  the  Levitical  law  prohibits 
marriage  among  blood  relatives  nearer  thfui  first 
cousins.  The  Latin  Church,  however,  which  in  the 
Middle  Ages  assumed  exclusive  jurisdiction  in  all 
things  pertaining  to  matrimony,  and  placed  the 
celebration  of  marriage  among  the  sacraments,  ex- 
tended this  prohibition,  under  Gregory   III.   (a.  d. 


FORBIDDEN  MARRIAGES.  43 

731),  to  the  seventh  canonical  degree,  which  was 
equivalent  to  the  fourteenth  civil  degree,  and  pro- 
hibited marriage  between  sixth  _  cousins.  This  un- 
reasonable rule,  in  some  isolated  towns  and  villages, 
where  people  were  nearly  all  more  or  less  related, 
amounted  almost  to  a  prohibition  of  matrimonial  priv- 
ileges. While  it  was  a  source  of  great  advantage  and 
power  to  the  Church,  which,  for  proper  considerations 
granted  special  dispensations  relaxing  the  severity  of 
the  rule,  it  nevertheless  excited  severe  comment  and 
wide  discussion,  and  some  very  queer  reasons  were 
assigned  for  the  existence  of  such  a  broad  prohibition, 
extending  at  first  to  the  fourth  degree  and  afterwards 
to  the  seventh  degree  of  consanguinity.  Here  is  a 
specimen  of  pleasant  irony  indulged  in  by  Jeremy 
Taylor  on  this  subject :  "  They  that  were  for  four," 
he  said,  "  gave  this  grave  reason  for  it.  There  are 
four  humors  in  the  body  of  man,  to  which,  because 
the  four  degi^ees  of  consanguinity  do  answer,  it  is 
proportionable  to  nature  to  forbid  the  marriage  of 
cousins  to  the  fourth  degree.  Nay,  more,  there  are 
four  elements ;  Ergo.  To  which  it  may  be  added 
that  there  are  upon  a  man's  hand  four  fingers  and  a 
thumb.  The  thumb  is  the  stirps,  or  common  parent ; 
and  to  the  end  of  the  four  fingers,  that  is,  the  four 
generations  of  kindred,  we  ought  not  to  marry,  be- 
cause the  life  of  man  is  but  a  span  long.  There  are 
also  four  quarters  of  the  world  ;  and  indeed  so  there 
are  of  every  thing  in  it  if  we  please,  and  therefore 
abstain  at   least   till   the   fourth   degree    be    past. 


44  THE   GEOGRAPHY  OF  MARRIAGE. 

Others  wlio  are  graver  and  's^dser  (particularly 
Bonaventure)  observe  cunningly  that  beside  the 
four  humors  of  the  body  there  are  three  faculties  of 
the  soul,  which,  being  joined  together,  make  seven, 
and  they  point  out  to  us  that  men  are  to  abstain  till 
the  seventh  generation.  These  reasons,  such  as  they 
are,  they  therefore  were  content  withal,  because  they 
had  no  better.  Yet  upon  the  strength  of  these 
they  were  bold  even  against  the  sense  of  almost  all 
mankind  to  forbid  these  degrees  to  marry." 

This  censorship  over  love  affairs,  however,  though 
wholly  arbitrary,  gave  the  Church  so  much  power 
and  such  an  influence  in  the  courts  of  Christendom, 
when  matrimonial  alliances  were  contemplated  for 
political  reasons,  that  England,  during  the  reign  of 
Henry  VIII.,  declared,  by  an  Act  of  Parliament,  that 
the  Church  should  not  question  marriages  not  pro- 
hibited by  God's  law,  as  set  forth  in  Leviticus,  so 
thaj;  the  line  of  relationship  was  drawn  at  first 
cousins.  By  a  prior  Act  of  Parliament,  however,  in 
the  same  reign,  those  who  were  forbidden  to  marry 
were  expressly  designated,  and  embraced  not  only 
blood  relatives  but  relatives  by  marriage,  and  by 
this  law  of  Parliament  it  was  declared  that  no  man 
should  marry  his  mother  or  step-mother,  his  sister, 
his  son's  or  daughter's  daughter's  daughter,  his 
father's  daughter  by  his  step-mother,  his  aunt,  his 
uncle's  wife,  his  son's  wife,  his  brother's  wife,  his 
wife's  daughter,  his  wife's  son's  daughter,  or  his 
wife's  daughter's  daughter,  or  his  deceased  wife's 


FORBIDDEN  MARRIAGES.  45 

sister.  These  restrictions  still  exist  iu  England,  but 
tliey  have  not  been  wholly  followed  or  adopted  in 
the  United  States. 

The  Latin  Church  no  longer  assumes  to  prohibit 
marriage  within  the  limitations  prescribed  by  it 
in  the  eighth  century.  It  has  long  since  recognized 
the  injustice  of  prohibitions  so  sweeping  and  un- 
reasonable as  those  which  existed  in  the  time  of 
Gregory  III.  Its  canons  now  preclude  inter- 
marriage only  among  blood  relatives  nearer  than 
second  cousins.  But  even  first  cousins  will  some- 
times be  permitted  to  wed  by  special  dispensation, 
and  such  unions  cannot  for  that  reason  always  be 
I'egarded  as  a  positive  sin.  As  a  Catholic  writer 
delicately  expresses  it :  "  In  cases  where  the  alterna- 
tive is  marriage  or  misery,  the  Church,  as  a  thought- 
ful mother,  grants  her  dispensation."  Late  in  the 
eleventh  century  Gregory  the  Great  placed  the 
objection  to  the  marriage  of  cousins  wholly  upon 
physical  or  sanitary  grounds.  Impressed  with  the 
popular  belief  which  then  prevailed,  and  which 
still  prevails  to  some  extent,  he  believed  that  such 
marriages  were  not  fertile,  and  declares :  "  We  have 
learned  from  experience  that  from  such  marriages 
offspring  cannot  grow."  Notwithstanding  this  pop- 
ular impression  there  are  instances,  not  only  abroad 
but  in  our  own  country,  in  which  relatives  have 
intermarried  for  generations,  with  the  deliberate 
design  and  purpose  of  retaining  the  wealth  and 
property   of   the    family.      The  result   seems,  to  a 


4^  THE    GEOGRAPHY   OF  MARRIAGE. 

degree  at  least,  to  have  developed  deplorable  conse- 
quences. Upon  this  subject  a  Southern  Journalist, 
referring  to  certain  family  connections  in  his  own 
neighborhood,  remarks  :  "  For  twenty  generations 
back  certain  families  of  wealth  and  respectability 
have  intermarried,  until  there  cannot  be  found  in 
three  or  four  of  them  a  sound  man  or  woman.  One 
has  sore  eyes ;  another,  scrofula ;  a  third  is  an  idiot ; 
a  fourth,  blind ;  a  fifth,  bandy-legged ;  a  sixth,  with  a 
head  about  the  size  of  a  turnip  ;  with  not  one  of  the 
number  exempt  from  physical  defects  of  some  kind 
or  other." 

It  is  possible  that  deplorable  results  follow  where 
relatives  have  intermarried  habitually  for  genera- 
tions. But  so  far  as  the  marriage  of  cousins  is 
concerned,  at  least  when  the  custom  has  not  been  in 
vogue  for  years  among  kinsfolk,  the  result  does  not 
warrant  the  conclusion  that  such  marriages  are  either 
unfruitful,  or  detrimental  to  the  physical  condition  of 
offspring.  A  most  careful  and  thorough  examination 
of  the  subject  of  the  marriage  of  cousins  has  been 
made  by  Mr.  George  H.  Darwin,  a  distinguished 
biologist,  and  son  of  the  great  scholar  and  scientist 
of  the  century,  and  his  investigations  have  shown 
such  marriages  to  be  as  fertile  as  ordinary  marriages, 
with  the  odds  slightly  in  their  favor.  As  regards 
physical  infirmities  he  finds  that  "  the  percentage  of 
the  offspring  in  asylums  is  not  greater  than  that  in 
the  general  population  to  such  an  extent  as  to  enable 
one   to   say   positively   that   the   marriage   of  first 


FORBIDDEN  MARRIAGES.  4/ 

cousins  has  any  eJffiect  on  the  production  of  insanity 
or  idiocy,"  and  he  finds  no  difference  at  all  with 
respect  to  deaf-mutes.  He  inclines  to  the  opinion, 
however,  that  "  various  maladies  take  an  easy  hold 
of  the  offspring  of  consanguineous  marriages."  There 
can  be  little  doubt  on  this  j)oii3t,  that  the  great 
danger  in  the  marriage  of  cousins  is  that  both  may 
inherit  from  a  common  ancestor  a  tendency  to  some 
serious  constitutional  disease  or  weakness.  Marriage 
of  first  cousins,  however,  is  not  contraiy  to  the 
canon  law  which  prevails  in  the  Church  of  England, 
and  from  a  Protestant  standpoint,  therefore,  is  not 
forbidden.  In  fourteen  States  of  the  American  Union 
are  such  marriages  prohibited  by  law,  as  vdll  be 
shown  presently. 

Among;  refined  states  livino*  under  Christian  in- 
fluences,  in  which  the  honor,  the  purity,  and  the 
sanctity  of  the  home  are  upheld  and  cherished,  in 
which  virtue  is  esteemed  as  essential  to  sound 
morality,  incest,  or  marriage  between  near  kin  of  the 
same  blood,  is  abhorred  as  a  crime,  and  an  abomina- 
tion most  deo;radino;  and  offensive.  Thouorh  re2:arded 
as  a  grievous  sin  by  the  clergy  in  the  early  Christian 
Church,  who  were  constrained,  perhaps  unwillingly, 
to  vows  of  celibacy,  consanguineous  marriages  were 
punishable  only  by  ecclesiastical  authority.  They 
were  not  made  penal  under  the  civil  law.  This  may 
arise  partly  from  the  fact  that  in  many  European 
countries  matters  pertaining  to  marriage  and  divorce 
were   exclusively   within   the   purview    of   Church 


48  THE    GEOGRAPHY    OF  MARRIAGE. 

authority.  It  is  only  by  comparatively  recent  laws 
in  England,  and  in  the  States  and  Territories  of  the 
American  Union,  that  incest  has  been  made  a  crime 
punishable  as  felony. 

In  some  States  the  crime  of  incest  embraces  not 
only  marriage  among  near  kin  of  the  same  blood, 
but  extends  to  relationships  which  exist  by  reason  of 
marriage,  or  ties  of  affinity.  In  this  chapter  only 
forbidden  marriages  among  blood  relatives  will  be 
considered.  Marriage  among  persons  related  by 
affinity,  and  the  legality  of  marriage  with  a  de- 
ceased wife's  sister,  will  be  examined  in  the  following 
chapter,  relating  to  marriage  among  husband's  or 
wife's  kindred. 

In  a  great  majoiity  of  the  States  and  Territories 
of  the  Union  the  prohibition  against  marriage  of  near 
kin  is  confined  to  marriages  between  parents  and 
children,  including  grandparents  and  grandchildren 
of  every  degree,  ascending  and  descending,  and 
between  brothers  and  sisters  of  the  half  as  well  as 
of  the  whole  blood.  In  New  York  such  marria2:es 
are  declared  to  be  incestuous  and  absolutely  void, 
and  the  prohibition  extends  to  illegitimate  as  well 
as  legitimate  children  and  relatives.  The  New  York 
statute  also  makes  the  maximum  or  highest  punish- 
ment for  the  crime  of  incest  imprisonment  for  not 
more  than  ten  years,  but  no  minimum  penalty  is 
prescribed. 

In  other  words,  in  most  States  a  man  and  con- 
versely a  woman  is  forbidden  to  marry  his  or  her 


FORBIDDEN  MARRIAGES.  49 

lineal  ancestor  or  descendant,  or  liis  or  her  brother 
or  sister  of  the  half  or  whole  blood.  This  is  so  in 
Alabama,  Arizona,  Arkansas,  California,  Colorado, 
Connecticut,  Dakota,  Delaware,  Idaho,  Indiana, 
Illinois,  Iowa,  Kansas,  Louisiana,  Maryland,  Massa- 
chusetts, Maine,  Minnesota,  Michigan,  Montana, 
Mississippi,  Missouri,  New  Hampshire,  New  Jersey, 
New  Mexico,  New  York,  Nevada,  Nebraska,  North 
Carolina,  Ohio,  Oregon,  Pennsylvania,  Rhode  Island, 
Tennessee,  Texas,  Vermont,  Virginia,  Wisconsin, 
Washington  Territory,  West  Virginia,  and  Wyoming. 
In  a  number  of  these  States  it  is  expressly  declared 
that  the  prohibition  exists  whether  either  person  or 
his  parent  is  legitimate  or  not.  This  is  so  in 
Alabama,  Arkansas,  Arizona,  California,  Colorado, 
Dakota,  Illinois,  Idaho,  Kansas,  Kentucky,  Louisi- 
ana, Missouri,  New  York,  Nebraska,  New  Mexico, 
and  Wyoming. 

In  Georgia  and  Florida,  the  prohibition  seems  to 
be  modelled  after  the  statute  of  Henry  VIII.,  which 
declared  all  marriages  lawful  except  those  prohibited 
by  Grod's  law.  In  those  States  the  law  of  Moses  has 
been  re-enacted,  and  persons  are  prohibited  from 
mariying  within  the  Levitical  degrees. 

In  many  States  a  man  is  forbidden  to  marry  his 
niece,  and  a  woman  is  likewise  forbidden  to  marry 
her  nephew,  by  blood.  This  is  so  in  Alabama, 
Arkansas,  Arizona,  California,  Colorado,  Connecticut, 
Dakota,  Delaware,  Idaho,  Indiana,  Illinois,  Iowa, 
Kansas,  Maine,  Maryland,  Massachusetts,  Minnesota, 


50  THE   GEOGRAPHY  OF  MARRIAGE. 

Michigan,  Mississippi,  Missouri,  Montana,  New 
Hampsliire,  New  Jersey,  Nevada,  Nebraska,  Nortli 
Carolina,  Ne^v  Mexico,  Ohio,  Oregon,  Pennsylvania, 
Rhode  Island,  South  Carolina,  Tennessee,  Texas, 
Vermont,  Virginia,  Wisconsin,  Washington  Territory, 
West  Virginia,  Wyoming. 

In  Delaware  and  Kentucky  a  man  is  forbidden  to 
marry  a  daughter  of  his  brother's  or  sister's  child ; 
and  a  woman,  likewise,  is  forbidden  to  marry  a  son 
of  her  brother's  or  sister's  child. 

With  respect  to  the  marriage  of  cousins,  there  is 
and  has  been  great  diversity  of  opinion.  Cousins  are 
related  collaterally,  and  not  being  lineal  kindred,  are 
excluded  from  the  prohibitions  prescribed  in  many 
States.  Some  of  the  objections  to  these  marriages 
have  already  been  referred  to  and  discussed.  It  has 
been  shown  that  the  marriao:e  of  cousins  has  been 
condemned  in  some  quarters  on  moral  grounds ;  also 
because  of  the  popular  notion,  more  or  less  widely 
entertained,  that  they  are  contrary  to  natural  law. 
Some  results  of  recent  scientific  investigation  have 
been  given,  which  clearly  indicate  that  much  of  the 
prejudice  against  such  marriages,  based  upon  the 
assumption  that  they  are  not  fertile,  or  tbat  offspring, 
if  produced  thereby,  are  liable  to  suffer  from  mental 
or  physical  infirmity,  is  wholly  unwaiTanted.  With 
reference  to  the  objections  to  such  marriages  from  a 
moral  standpoint,  it  appears  that  they  have  been  for- 
bidden by  the  rules  and  discipline  of  the  Roman 
Catholic   Church,  except  when   allowed  by  special 


FORBIDDEN  MARRIAGES.  5 1 

dispensation ;  but  that  they  are  not  in  express  terms 
forbidden  by  the  canons  of  the  Protestant  Episcopal 
Church,  nor  by  any  other  Christian  sect.  It  only  re- 
mains to  consider  how  such  marriages  are  regarded 
by  the  civil  law,  in  the  various  States  of  the  Union. 
In  many  localities,  collateral  relatives  after  brothers 
and  sisters  are  not  within  the  prohibited  degrees  of 
consanguinity.  In  those  States  where  the  law  is  silent 
on  the  subject  of  the  right  of  cousins  to  marry,  such 
espousals  must  be  upheld  as  legal  and  valid.  In  the 
State  of  New  York,  for  example,  where  only  lineal  an- 
cestors, or  lineal  descendants,  after  brothers  and  sis- 
ters are  forbidden  to  intermarry,  cousins  not  falling 
within  the  prohibition  may  lawfully  marry.  In  four- 
teen States  only  are  such  marriages  positively  forbid- 
den by  law  ;  and  in  the  remainder  of  the  States 
cousins  ma}^  lawfully  marry.  The  localities  in  which 
the  marriage  of  cousins  is  criminal  are  embraced 
within  the  boundaries  of  Arizona,  h  rkansas,  Colorado, 
Dakota,  Illinois,  Indiana,  Kansas,  Montana,  Nevada, 
New  Hampshire,  Ohio,  Oregon,  Washington  Ter- 
ritory, and  Wyoming.  The  last  State  added  to  this 
list  was  Illinois,  which  forbade  cousins  to  wed  as  re- 
cently as  June,  1887.  These  varying  rules  of  wed- 
lock may  give  rise  to  very  serious  questions,  because 
of  the  conflicting  principles  of  international  and 
interstate  law  embraced  in  these  two  propositions : 
first,  a  marriage  valid  where  solemnized  is  valid 
everywhere ;  second,  every  State  has  power  to 
adjudge  the  status  of  its  ow^n  citizens.    Now  suppose 


52  THE    GEOGRAPHY   OF  MARRIAGE. 

the  cousins  were  citizens  of  Illinois  dwelling  in  Chi- 
cago. And  suppose,  moreover,  these  cousins  were 
desperately  in  love.  When  about  to  fix  the  wedding- 
day,  they  learn  that  cousins  are  forbidden  to  marry 
by  the  laws  of  Illinois,  and  that  such  marriages,  if 
performed,  are  criminal,  and  void  absolutely.  Here 
is  a  dilemma.     But  there  is  an  old  saw — 

"  If  a  woman  will,  she  will,  and  you  can  depend  on  't. 
And  if  she  won't,  she  won't,  and  there  's  an  end  on  't." 

Lovers  are  ingenious  sometimes,  and  always  deter- 
mined. Suppose  they  should  conclude  to  wed  in 
spite  of  the  law,  and  should  take  a  train  to  Mil- 
waukee, in  the  neighboring  State  of  Wisconsin, 
where  cousins  are  permitted,  or  at  least  not  for- 
bidden, to  espouse.  By  crossing  a  State  line,  that 
which  would  have  been  a  void  act  becomes  a  valid 
ceremony,  and  that  which  would  have  subjected 
the  parties  to  a  criminal  indictment,  renders  them 
husband  and  vsdfe.  The  marriage  is  valid  in  Wiscon- 
sin, and  the  couple  go  home.  The  question  at  once 
presents  itself,  what  is  the  effect  of  the  transition 
from  Wisconsin  to  Illinois  %  The  bride  and  groom 
are  not  citizens  of  Wisconsin  at  all,  but  of  Illinois ; 
and  it  is  an  elementary  rule  of  international  law  that 
every  State  has  power  to  adjudge  the  status  of  its 
own  citizens,  and  to  prescribe  the  rule  of  social  life 
within  its  Ijorders.  Their  status  in  Wisconsin  is  one 
thing.  What  is  their  status  in  Illinois  ?  Those  who 
assert  that  the  marriage  is  valid  in  the  latter  State, 


FORBIDDEN  MARRIAGES.  53 

hold  to  the  well-established  doctrine  that  a  marriage 
valid  where  solemnized  is  valid  everywhere.  Those 
who  might  question  the  validity  of  the  marriage, 
would  claim  that  the  status  of  the  citizens  of  Illinois 
must  be  governed  by  the  laws  of  Illinois. 

Just  what  construction  the  courts  would  put  upon 
the  validity  of  such  marriages,  it  will  be  impossible 
to  conjecture  until  the  question  arises.  It  may  be 
observed  that  the  citizens  of  Illinois  are  also  citizens 
of  the  United  States,  and  the  Federal  Constitution 
provides  "that  the  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  States."  If  the  immunities  to  which 
citizens  of  AVisconsin,  under  the  circumstances,  would 
be  entitled  to,  should  accrue  under  the  Constitution 
to  the  citizens  of  Illinois  after  their  return  from 
Wisconsin,  whither  they  had  gone  to  evade  the  laws 
of  Illinois,  the  provisions  of  the  Constitution  referred 
to  might  shield  and  protect  the  parties  in  their  own 
State. 

This  inquiry  presents  a  question  of  the  very  highest 
importance.  Some  light  may  be  thrown  upon  it  by 
ascertaining  what  exceptions,  if  any,  exist  with  re- 
spect to  the  rule  just  stated,  that  a  marriage  valid 
where  celebrated  is  valid  everywhere.  Mr.  Joel  P. 
Bishop,  a  writer  of  wide  reputation,  universally  ac- 
knowledged as  standard  authority  upon  this  subject, 
in  his  work  on  "  Mamage  and  Divorce,"  declares  that 
incest  and  polygamy  furnish  the  principal  exceptions 
to  this  rule  yet  developed  in  the  progress  of  juris- 


54  THE    GEOGRAPHY   OF  MARRIAGE. 

prudence.  But  cau  it  be  truthfully  said  that  the 
marriage  of  cousins  constitutes  incest  mthin  the 
meaning  of  the  exception.  According  to  Mr.  Bishop, 
there  must  be  an  infringement  of  the  law  of  nature 
in  order  to  render  void  a  consanguineous  marriage. 
Cousins  being  in  the  collateral  line  may  marry  with- 
out offending  any  supposed  natural  law.  "  All  mar- 
riages," says  Mr.  Bishop,  "  between  persons  in  the 
lineal  ascending  and  descending  degrees  of  blood  re- 
lationship and  between  brothers  and  sisters  in  the 
collateral  line,  whether  of  the  whole  or  half  blood  " 
are  within  the  prohibition  of  natural  law,  and  for  that 
reason  incestuous  and  void.  More  correctly  speaking, 
marriages  involving  the  ties  of  blood  referred  to  may 
be  said  to  contravene,  not  the  law  of  nature,  but  the 
moral  law  as  declared  by  Moses,  by  divine  authority ; 
because  before  the  time  of  Moses,  marriage  among 
near  kindred  was  not  regarded,  even  by  the  Israel- 
ites, as  contrary  either  to  natural  law  or  to  divine 
revelation.  Cousins  are  not  prohibited  from  marry- 
ing by  the  Mosaic  law,  and  are  not  included  in  the 
table  of  2^1'ohibited  degrees  published  in  15G3  by 
Archbishop  Parker,  and  embraced  in  the  ninety-ninth 
canon  of  the  Church  of  England  in  1603.  Such  mar- 
riages cannot  be  said  to  oifend  good  morals,  and  can- 
not be  claimed  to  be  incestuous. 

Citizens  of  Illinois,  then,  being  cousins,  and  desir- 
ing to  marry,  finding  they  are  forbidden  to  do  so  at 
home,  go  into  an  adjoining  State,  still  a  part  of  their 
own  country,  where  their  wedding  will  be  legal  and 


FORBIDDEN  MARRIAGES.  55 

valid.  By  availing  themselves  of  the  liberal  provi- 
sions of  the  laws  of  Wisconsin,  how  can  it  be  said 
they  have  committed  a  crime  f  Their  marriage 
would  be  good  in  every  other  State  in  the  Union. 
Why  should  the  territory  of  Illinois  be  the  only  spot 
in  the  United  States  where  their  children  would  in- 
cur the  stigma  of  bastardy,  and  their  espousals  be 
declared  void  ?  So  long  as  the  law  of  Illinois  con- 
tains no  positive  declaration  that  in  case  a  citizen 
goes  out  of  the  State  to  marry  in  order  to  evade  its 
laws,  with  intent  to  return,  that  a  marriage  so  con- 
tracted will  be  void  in  Illinois,  the  rule  would  seem 
to.  be  that  the  marriage  would  be  governed  by  the 
law  of  the  State  where  it  was  solemnized  ;  and  being 
valid  there  is  valid  everywhere.  This  precise  point 
was  passed  upon  in  Kentucky,  where  a  man  is  for- 
bidden to  marry  the  widow  of  his  deceased  uncle. 
The  parties  being  so  related  went  over  to  Tennessee 
where  such  marriages  were  not  prohibited,  and  were 
wedded.  On  their  return  the  Kentucky  courts  up- 
held the  marriage,  declaring  it  to  be  valid  as  well  in 
Tennessee  as  in  Kentucky.  This  subject  will  be 
further  considered  when  we  come  to  specially  dis- 
cuss the  proposition  that  a  marriage  valid  where 
solemnized  is  valid  everywhere. 

In  the  State  of  Rhode  Island,  however,  where  the 
matrimonial  prohibition  extends  to  step-parents  and 
step-children,  and  sons-in-law  and  daughters-in-law, 
it  is  expressly  declared  that  Jews  may  contract  valid 
marriages,  though  related,  so  long  as  such  marriages 


56  THE    GEOGRAPHY  OF  MARRIAGE. 

are  within  the  degrees  allowed  by  their  religion. 
With  commendable  liberality,  therefore,  the  legisla- 
ture of  this  New  England  State  has  had  respect  for 
the  religious  liberty,  or  liberty  of  conscience,  exer- 
cised by  devout  Hebrews  within  her  borders.  So 
that  in  affairs  of  love  they  may  follow  the  rules  pre- 
scribed by  their  religious  convictions,  which  is  based 
upon  the  statutes  of  one  of  the  wisest  law-givers  of 
any  age. 


CHAPTER   VIII. 


"  What  do  you  think  of  marriage  ? 
I  take  it  as  those  that  deny  purgatory  ; 
It  socially  contains  or  heaven  or  hell  ; 
There  is  no  third  place  in  it." 

Webster. 


It  has  been  shown  that  marriage  between  near  kin 
of  the  same  blood,  in  the  ascending  or  descending 
line,  or  nearer  than  first,  and  in  some  instances  than 
second  cousins,  is  not  only  contrary  to  divine  law, 
refined  taste,  and  sound  morality,  but  is  also  contrary 
to  human  law,  and  is  forbidden  by  the  statutes  of 
the  various  States  and  Territories  of  the  United 
States,  and  also  in  Great  Britain  and  throughout  the 
Christian  world.  Recent  legislation  has  made  a 
violation  of  these  laws  felony,  and  upon  indictment 
and  conviction  offenders  in  many  States  of  the 
Union  incur  the  penalties  which  attach  to  the 
crime  of  incest.  Where  the  relationship  between 
the  parties  exists  by  reason  of  blood  or  ties  of  con- 
sanguinity, it  is  generally  agreed  by  the  laws  of 
modern  society  that  such  marriages  are  void  abso- 
lutely.    But  where  the  relationship  exists  by  reason 

57 


58  THE    GEOGRAPHY  OF  MARRIAGE. 

of  marriage,  or  ties  of  affinity,  whether  marriage 
between  parties  so  related  is  proper,  is  a  question 
upon  Avhich  there  is  a  very  wide  difference  of 
opinion,  and  which  has  provoked  endless  discussion 
in  both  Europe  and  America.  The  Latin  Church 
has  persisted  in  its  hostility  to  such  marriages,  but 
its  opposition  has  been  scarcely  less  stern  and  un- 
yielding than  that  assumed  by  the  Church  of  Eng- 
land. When  it  separated  from  the  Church  of  Rome, 
Henry  VIII.,  its  nominal  head,  used  his  influence 
and  secured  an  act  of  Parliament  forbidding  mar- 
riage within  certain  degrees  of  affinity  ;  and  since 
the  time  of  the  Tudors  the  House  of  Lords  has  stead- 
ily resisted  every  attempt  to  have  this  legislation 
repealed.  The  act  of  Parliament  referred  to  forbade 
marriage  with  many  of  the  wife's  and  husband's 
kindred,  as  well  as  blood  relatives,  declaring  that  no 
man  should  marry  his  mother  or  step-mother,  his 
sistei',  his  son's  or  daughter's  daughter,  his  father's 
daughter  by  his  step-mother,  his  aunt,  his  uncle's 
wife,  his  son's  wife,  his  brother's  wife,  his  wife's 
daughter,  his  wife's  son's  daughter,  or  his  wife's 
daughter's  daughter.  It  also  in  express  terms  for- 
bade a  man  to  marry  his  deceased  wife's  sister. 

Although  this  prohibition  against  the  marriage  of 
a  deceased  wife's  sister  has  prevailed  so  long  in 
England  and  elsewhere  in  continental  countries, 
the  view  with  regard  to  such  prohibition  has  not 
been  generally  adopted  in  the  United  States. 

While  such   marriages  are  not  sanctioned  or  ap- 


HUSBAND'S  OR   WIFE'S  KINDRED.  59 

proved  in  many  chiirclies,  and  by  some  ecclesiastical 
authorities  are  deemed  highly  inexpedient,  inconsis- 
tent with  domestic  purity,  and  exceedingly  offensive 
to  a  large  portion  of  the  Christian  Church,  yet,  in 
many  Protestant  churches,  at  least,  such  marriages 
are  no  longer  regarded  as  contrary  to  the  Levitical 
law,  although,  in  some  instances,  parties  who  contract 
them  will  be  subjected  to  ecclesiastical  censure  and 
disciplined  accordingly.  Such  j^enalties,  however, 
as  religious  societies  may  choose  to  inflict  cannot 
extend  so  as  to  interfere  with  the  rights  and  privi- 
leges guaranteed  to  every  citizen,  unless  the  law  of 
the  State  prohibits  such  marriages.  Virginia  was 
perhaps  the  only  State  in  which  a  marriage  with  a 
deceased  Avif  e's  sister  has  been  declared  to  be  unlaw- 
ful. Elsewhere  throughout  the  United  States  the 
law  is  either  silent  upon  the  subject  or  has  expressly 
approved  and  sanctioned  such  marriages.  In  Vermont 
it  has  been  expressly  declared  by  the  highest  judicial 
authority,  that  marriage  with  a  deceased  wife's 
sister  is  perfectly  good  and  valid.  And  the  reason 
for  this  view  of  the  law  is  based  upon  the  distinction 
between  ties  of  consanguinity  and  ties  of  affinity; 
between  relationship  existing  in  blood  and  relation- 
ship created  by  marriage.  The  relationship  of  blood 
is  derived  from  the  law  of  nature,  and  can  never  be 
dissolved ;  but  the  relationship  created  by  marriage 
never  had  any  existence  at  all  until  the  marriage  took 
place,  and  continues  only  so  long  as  the  marriage 
continues.     But  when  death  dissolves  the  marriage, 


6o  .  THE    GEOGRAPHY  OF  MARRIAGE. 

it  dissolves  likewise  the  relationsliip,  whicli  it,  and  it 
alone,  produced.  So  the  Court  reached  the  conclu- 
sion that  although  a  man  is  by  affinity  brother  to  his 
wife's  sister,  yet  upon  the  death  of  his  wife  he  may 
lawfully  marry  her  sister. 

Whether,  therefore,  a  man  who  marries  his  de- 
ceased wife's  sister  stands  blameless  before  the  law 
and  lives  in  a  state  of  matrimony  and  is  allowed  to 
call  his  children  legitimate ;  or  whether  in  so  doing 
he  has  committed  a  crime  which  may  relegate  him  to 
a  felon's  cell  and  brand  his  offspring  as  illegitimate, 
will  turn,  not  strictly  upon  a  question  of  morals,  but 
upon  a  question  of  geography.  If  the  couple  hap- 
pened to  contract  the  alliance  in  Rutland,  Brattle- 
boro,  Montpelier,  or  anywhere  in  the  State  of  Ver- 
mont, the  alliance  would  be  a  lawful  marriage,  and 
no  penalties  could  attach  to  the  act.  But  if  it  hap- 
pened that  the  marriage  took  place  at  Richmond,  or 
elsewhere  in  the  State  of  Virginia  prior  to  the  fifteenth 
day  of  March,  1860  ;  or  if  the  celebration  of  the 
nuptials  was  performed  in  London  or  elsewhere  in 
England,  the  parties  upon  conviction  would  be 
branded  as  felons,  and  their  offspring  would  be 
disinherited. 

The  law  of  Virginia  by  which  a  man  was  forbid- 
den to  marry  his  deceased  wife's  sister  existed  prior 
to  the  late  war  of  tlie  rebellion,  and  was  repealed 
on  the  fifteenth  of  March,  18G0.  Since  that 
time  there  is  no  law  in  Virginia  which  prohibits 
in   express   terms   marriage   with   the    sister    of    a 


HUSBAND'S   OR    WIFE'S  KINDRED.  6 1 

deceased  wife.  Sucli  marriages  are  not  proliibited 
by  statute  in  otlier  portions  of  the  Union,  so  that, 
if  celebrated  within  the  United  States,  they  may 
be  considered  legal.  In  England,  however,  they 
are  still  forbidden. 

Certain  other  marriages  between  relatives  of  a 
deceased  husband  or  of  a  deceased  wife  are  con- 
demned by  ecclesiastical  authority,  although  many 
of  them  are  not  contrary  to  the  laws  of  the  State. 
Marriage  with  a  brother's  widow  is  deemed  censur- 
able. So  marriao^e  with  a  wife's  brother's  dauo-hter, 
though  not  forbidden  by  the  Scriptures,  will  subject 
the  parties  to  discipline  in  some  churches.  This 
censure  extends  also  to  marriao;e  with  a  deceased 
wife's  sister's  daughter,  or  with  a  half-brother's 
widow.  As  to  what  kindred  of  the  deceased 
husband  or  of  the  deceased  wife  a  man  or  woman 
is  forbidden  to  marry  by  the  law  of  the  land,  mil 
depend  upon  questions  of  geography.  Marriages 
between  step-parents  and  step-children  are  declared 
unlawfid  in  twenty-two  States  and  Territories.  So 
that  a  man  is  forbidden  to  marry  his  father's  widow 
or  his  wife's  daughter ;  and  a  woman  likewise  is  for- 
bidden to  marry  her  step-father  or  her  step-son,  in 
either  of  the  following  States:  Alabama,  Connecticut, 
Delaware,  Georgia,  Iowa,  Kentucky,  Massachusetts, 
Maine,  Michigan,  Mississippi,  Maryland,  New  Hamp- 
shire, New  Jersey,  Pennsylvania,  Rhode  Island, 
South  Carolina,  Tennessee,  Texas,  Vermont,  Virginia, 
Washington  Territory,  and  West  Virginia. 


62  THE    GEOGRAPHY  OF  MARRIAGE. 

A  man  cannot  marry  liis  wife's  step-daughter,  nor 
a  woman  lier  husband's  step-son  in  Virginia  or  West 
Virginia. 

Marriages  between  grandparents  and  grandchil- 
dren are  prohibited  in  eighteen  States.  A  man, 
therefore,  may  not  marry  his  grandfather's  widow, 
nor  his  wife's  granddaughter ;  nor  can  a  woman 
marry  her  grandmother's  husband  in  Alabama, 
Dele  ware,  Georgia,  Iowa,  Kentucky,  Maine,  Massa- 
chusetts, Michigan,  Maryland,  New  Jersey,  Pennsyl- 
vania, Rhode  Island,  South  Carolina,  Tennessee, 
Texas,  Vermont,  Virginia,  and  West  Virginia. 

Sons-in-law  and  fathers-in-law  and  daughters-in- 
law  and  mothers-in-law  are  forbidden  to  intermarry 
in  nineteen  States  and  Territories,  namely,  Alabama, 
Delaware,  Georgia,  Iowa,  Kentucky,  Maine,  Massa- 
chusetts, Michigan,  Maryland,  New  Hampshire, 
New  Jersey,  Pennsylvania,  Rhode  Island,  South 
Carolina,  Tennessee,  Vermont,  Virginia,  Washington 
Territory,  and  West  Virginia. 

Grandparents  are  forbidden  to  marry  the  widows 
or  widowers  of  grandchildren  in  thirteen  States  and 
Territories ;  so  that  a  man  cannot  marry  his  grand- 
son's widow,  nor  a  woman  her  granddaughter's 
husband,  and  inversely,  in  Delaware,  Kentucky, 
Maine,  Massachusetts,  Michigan,  Maryland,  New 
Hampshire,  New  Jersey,  Rhode  Island,  South 
Carolina,  Tennessee,  Vermont,  and  Washington 
Territory. 

In  Virginia  and  West  Virginia  it  is  unlawful  for 


HUSBAND'S   OR    WIFE'S  KINDRED.  63 

a  man  to  marry  his  wife's  step-daughter;  or  for  a 
woman  to  marry  her  husband's  step-son  ;  nor  can  she 
marry  the  husband  of  her  niece.  In  West  Virginia 
it  is  unlawful  for  a  man  to  marry  his  nephew's 
widow.  And  in  Alabama  a  man  shall  not  marry 
his  uncle's  widow. 


CHAPTER  IX. 

MOK&EEL     MAERIAGES JIISCEGENATION. 


First  Senator. — But,  Othello,  speak  : — 
Did  you,  by  indirect  and  forced  courses. 
Subdue  and  poison  this  young  n[iaid's  affections  ? 
Or  came  it  by  request,  and  such  fair  question 
As  soul  to  soul  affordeth  ? 


Brabantio. — I  pray  you  hear  her  speak, 

If  she  confess  that  she  was  half  the  wooer, 

Destruction  on  my  head,  if  my  bad  blame 

Light  on  the  man  !  "  Shakespeare. 


MiscEGEis^ATioisr  is  a  modern  crime.  Until  within 
comparatively  recent  years,  difference  of  race  or  color 
constituted  no  bar  to  marriage,  nor  were  mongrel 
marriages  regarded  as  criminal  in  the  eye  of  the  law. 
There  was  no  prohibition  growing  out  of  race  or 
color  known  to  the  common  law  of  England  before 
the  American  Revolution,  although  almost  immedi- 
ately thereafter,  in  the  year  1786,  a  law  was  passed 
in  Massachusetts  forbidding  marriage  between  white 
persons,  Indians,  or  mulattoes.  Massachusetts,  how- 
ever, furnished  the  pioneers  in  the  great  struggle  for 
universal  freedom,  which  culminated  in  the  abolition 
of  property  in  human  beings.  Doubtless  the  influ- 
ence of  these  fearless  men  led  to  the  repeal. of  the 

64 


MONGREL   MARRIA  GES.  65 

statute,  restricting  marriages  on  account  of  race 
distinctions.  The  law  was  abolished  in  Massachu- 
setts in  1843,  nearly  half  a  century  ago. 

The  intermarriage  of  whites  and  blacks  is  certainly 
revolting,  and  offensive  to  good  taste.  But  the 
ground  on  which  such  relationships  are  prohibited 
cannot  spring  from  a  violation  of  the  laws  of  i^hysi- 
cal  science.  AYhen  different  species  are  considered, 
it  will  be  observed  that  union  between  a  male  and 
female,  as  a  rule,  is  unproductive  ;  but  when  fertile, 
produces  an  offspring  which  does  not  resemble  either 
of  its  parents,  a  mixture  in  nearly  equal  proportions 
of  the  separate  characters.  Plants,  or  animals,  be- 
longing to  distinct  species,  as  a  rule,  are  not  able 
when  crossed  with  each  other  to  beget  progeny.  To 
this  rule,  however,  there  are  numerous  exceptions, 
and  certain  species  when  crossed  produce  offspring, 
or  hybrids,  but  these  hybrids,  among  the  lower  ani- 
mals, are  usually  sterile. 

To  the  race  of  mankind,  however,  this  law  of 
nature  has  no  application.  The  human  family  de- 
scends from  common  parents,  and  constitutes  but 
one  species.  "  Seeing  He  giveth  to  all  life,  and 
breath,  and  all  things ;  and  has  made  of  one  blood 
all  nations  of  men  for  to  dwell  on  all  the  face  of  the 
earth."  Members  of  diverse  races  have  intermarried 
from  the  earliest  times.  Moses,  who  belonged  to  the 
Semitic  race,  when  a  stranger  in  a  strange  land,  after 
his  flight  from  Egypt,  married  Zipporah,  the  daughter 
of  a  priest  of  Miclian,  an  Arabian  girl  dwelling  among 


^  THE    GEOGRAPHY  OF  MARRIAGE. 

the  Bedouins  of  tlie  desert.  Ishmael  dwelt  in  the 
wilderness  of  Parau,  and  married  a  wife  out  of  the 
land  of  Egypt,  a  nation,  which  according  to  very  high 
authority,  is  said  to  be  a  modified  African  race.  From 
this  mixture  of  races  came  the  myriad  tribes  of  the 
desert.  The  mulattoes  are  descended  from  Euro- 
peans and  negroes ;  the  Mestizos,  from  Europeans 
and  Indians;  Zanibas,  from  Americans  and  negroes; 
and  mixed  Creoles,  of  European  and  tropical  Indian 
descent.  These  crossed  or  sub-races  are  most  fertile, 
and  demonstrate  that  mankind  embraces  but  a  single 
species,  and  though  the  image  may  be  cast  in  differ- 
ent types  and  colors,  which,  for  convenience,  are 
classed  into  separate  races,  yet  hybridism,  so  far  as 
mankind  is  concerned,  does  not  result  in  sterility. 

The  prohibition  of  matrimony  among  persons  of 
diverse  races  is  based  largely  on  grounds  of  public 
decency,  and  is  forbidden  in  some  States,  while  in 
others  the  prohibition  is  coupled  with  severe  pen- 
alties and  constitutes  a  crime.  In  other  localities, 
however,  there  are  absolutely  no  restrictions  or  limi- 
tations, so  far  as  race  differences  are  concerned.  The 
inexpediency  of  legislation  punishing  bad  taste  as  a 
crime,  as  at  present  existing,  becomes  apparent 
when  the  law  of  the  various  States  covering  this 
branch  of  the  subject  is  examined  and  analyzed,  and 
the  glaring  defects,  inequalities,  and  inconsistencies 
are  pointed  out.  Men  of  refined  instincts  will 
doubtless  agree  that  it  is  shocking  bad  taste  for  a 
white  man  to  intei-marry  with  an  African,  or  a  Mon- 


MONGREL   MARRIAGES.  6/ 

golian,  or  an  Indian.  Every  sense  of  propriety  and 
social  decorum  must  of  necessity  repudiate  the  incon- 
gruity and  fantastic  anomaly  exhibited  by  such  un- 
seemly alliances.  Nevertheless  it  may  be  pertinent 
to  inquire  vi^hence  society  derives  the  moral  right  at 
least  to  punish  a  man  because  of  his  taste^  or  to 
make  him  a  criminal  for  the  sake  of  his  taste, 
even  though  the  exercise  of  Judgment  may  appear 
degrading  and  offensive.  The  portions  of  the  United 
States  in  which  the  social  status  of  the  citizen  has 
been  made  the  subject  of  legislation,  cover  the 
Southern  States,  one  of  the  Middle  States,  eight  of 
the  Western  States,  and  two  Tei'ritories,  as  follows  : 
Alabama,  Arkansas,  Maryland,  Virginia,  West  Vir- 
ginia, North  Carolina,  South  Carolina,  Georgia,  Flor- 
ida, Kentucky,  Tennessee,  Texas,  and  Mississippi. 
In  Louisiana,  also,  by  Judicial  authority.  The  only 
one  of  the  Middle  States  in  this  category  is  Dela- 
ware. The  Western  States  embrace  California,  Col- 
orado, Nevada,  Missouri,  Indiana,  Nebraska,  Ohio, 
and  Oregon.  The  Territories  referred  to  are  Ari- 
zona and  Dakota.  Twenty-two  States  and  two  Ter- 
i-itories  have  legislated  on  this  topic,  and  the  courts 
of  Louisiana  have  acted  in  harmony  with  the  legis- 
latures of  the  Southern  States  with  reo;ard  to  it. 
Massachusetts,  Maine,  and  Michigan  have  delib- 
erately abolished  all  legislation  on  the  subject  of 
race  marriages,  and  such  alliances  are  not  prohibited 
or  made  criminal  in  any  of  the  States  or  Territories 
except  the  twenty-five  above  enumerated. 


68  THE   GEOGRAPHY  OF  MARRIAGE. 

The  legislation,  however,  making  miscegenation  a 
crime  is  vague  and  shadowy,  and  lacks  consistency 
or  uniformity  to  an  extent  which  renders  it  not  only 
incongruous  but  in  some  instances  ludicrous,  as  a  cur- 
sory examination  will  show.  In  Alabama,  Maryland, 
North  Carolina,  Tennessee,  and  Texas  the  line  is  drawn 
at  the  fourth  generation,  so  that  the  crime  is  commit- 
ted if  the  offender  marries  a  descendant  of  African  pa- 
rents to  and  including  the  third  generation,  notwith- 
standing one  ancestor  in  each  generation  may  have 
been  white.  In  other  localities  the  crime  is  meas- 
ured by  the  drops  of  blood  flowing  in  the  veins  of 
the  parties  ;  so  that  in  Mississippi,  Nebraska,  Oregon, 
Virginia,  and  West  Virginia,  the  offender  must  have 
espoused  a  person  having  one  fourth  negro  blood,  and 
if  it  turns  out  that  the  woman  has  an  extra  drop  of 
white  blood,  she  is  a  lawful  wife,  and  no  crime  has 
been  committed.  In  Florida,  Indiana,  and  Missoui'i, 
if  the  groom  is  white  and  the  bride  has  but  one 
eighth  negro  blood  in  her  veins,  the  marriage  is 
penal,  whereas  an  extra  drop  of  white  blood  would 
render  it  valid.  In  one  locality  a  \vhite  man  may 
marry  an  octoroon,  but  not  a  quadroon ;  while  in 
another  locality  the  octoroon  marks  the  boundary 
line  in  testing  the  guilt  or  innocence  of  the  bride- 
groom. In  Ohio,  however,  the  line  is  even  more 
vague  and  shadowy.  In  that  State,  in  oi'der  to  con- 
stitute the  crime,  one  party  must  be  of  pui'e  white 
blood,  and  the  other  must  have  a  suflicient  amount 
of  African  blood  to  render  that  fact  visible  to  the 


MONGREL   MARRIAGES.  69 

naked  eye.  In  sucli  a  conflict  of  shade  and  shadow 
the  line  of  demarcation  upon  which  the  liberty  of 
the  prisoner  depends  is  vague  indeed.  To  scientific 
eyes  the  marriage  might  be  considered  void,  since 
in  order  perhaps  to  sustain  some  ethnological  theory, 
color  enouo^h  mig^ht  be  imag-ined  to  taint  the  blood, 
while  to  another,  who  had  never  made  a  speci- 
alty of  race  distinctions,  it  might  be  apparent  that 
the  blood  was  pure.  One  set  of  experts  would 
testify  one  way,  and  others  might  readily  be  found 
who  could  conscientiously  testify  to  directly  the  oppo- 
site ;  so  that  the  liberty  of  tlie  bride  and  groom,  who 
perhaps  had  the  misfortune  to  be  ignorant  and  guilty 
of  bad  taste,  and  the  legitimacy  of  their  children, 
would  be  involved  in  the  whim  or  caprice  of  experts 
or  jurymen  who  diifered  on  questions  in  the  science 
of  anthropology. 

The  inconsistency  of  this  legislation  is  further 
apparent  from  the  fact  that  in  some  States  the  pro- 
hibition is  directed  only  against  Africans  or  mulat- 
toes,  while  in  others  it  is  extended  to  Chinese,  Kan- 
akas, and  Indians.  In  Arizona,  Nevada,  and  Oregon, 
Chinese  or  Mongolians  are  named  in  the  prohibition. 
In  California  it  is  criminal  to  issue  a  license  for  the 
marriage  of  a  white  person  and  a  Mongolian,  though 
the  marriage  is  not  in  terms  declared  criminal.  Ne- 
vada and  South  Carolina  prohibit  marriage  between 
whites  and  Indians,  while  in  North  Carolina  the  In- 
dians under  prohibition  are  confined  to  a  particular 
tribe,  known  as  the  Croatans.     In  Oregon  the  prohi- 


70  THE    GEOGRAPHY   OF  MARRIAGE. 

bition  embraces  persons  having  one  fourth  or  more 
Kanaka  blood. 

Georgia,  by  her  constitution,  adopted  in  1865,  has 
made  legislation  of  this  character  an  anachronism ; 
and  should  the  legislature  choose  to  repeal  existing 
laws  on  the  subject,  they  could  not  constitutionally 
enact  others  of  like  import.  "  The  social  status  of 
the  citizen,"  says  the  constitution,  "  shall  never  be 
the  subject  of  legislation."  Indeed  it  is  a  question 
whether  since  this  constitution  went  into  effect  the 
old  law  making  race  marriages  a  crime  is  not  thereby 
rendered  inoperative,  since  any  effect  to  enforce  it 
now  would  operate  upon  the  social  status  of  the  citi- 
zen. However  this  may  be  regarded,  no  new  laws 
on  the  subject  can  now  be  passed. 

Want  of  harmony  and  consistency  characterize  all 
legislation  on  this  rather  novel  subject  of  mixed  race 
marriages,  upon  which  opinions  will  differ.  Should 
the  effort  to  secure  uniformity  of  legislation  concern- 
ing marriage  and  divorce  promise  success  in  the  future, 
this  branch  of  the  subject  should  not  be  overlooked. 


CHAPTER  X. 

BIfiAMY     AND     ITS     CONSEQUENCES MATRIMONIAL     EN- 
TANGLEMENTS. 


"  The  ancient  saying  is  no  heresy, 
Hanging  and  wiving  go  by  destiny." 

Shakespeare. 


The  fact  that  a  person  has  more  than  one  hus- 
band or  one  wife  living  at  the  same  time,  may  or 
may  not  constitute  the  crime  of  bigamy.  Every 
State  in  the  Union  has  treated  double  marriaoje 
contracted  under  certain  circumstances  as  a  crime, 
and  attached  to  it  penalties  more  or  less  severe. 
This  is  true,  notwithstanding  the  fact  that  in  Utah 
polygamy  is  not  only  practised,  but  forms  an  element 
of  religious  belief  within  the  Mormon  Church,  a  sect 
which  originally  settled  in  that  country.  Yet,  para- 
doxical as  it  may  seem,  polygamy  is  forbidden  by 
the  laws  of  Congress  within  the  Territory,  and  Con- 
gress has  jurisdiction  and  ample  power  to  prescribe 
what  the  social  laws  of  Utah  shall  be.  The  law 
prohibiting  this  social  evil,  which  has  so  long  been  a 
stain  upon  the  fair  name  of  the  Republic,  can  be  en- 
forced by  Congress,  and  all  the  resources  of  the  Fed- 
eral government  may  be  brought  to  bear  in  order 
that   the   law   may   be    vigorously  executed.      The 

71 


72  THE   GEOGRAPHY  OF  MARRIAGE. 

Supreme  Court  of  the  United  States  has  declared 
that  Congress  can  properly  legislate  upon  the  sub- 
ject of  polygamy;  that  religious  belief  cannot  be 
accepted  as  a  justification  of  an  overt  act  made  crim- 
inal by  the  law  of  the  land ;  that  while  "  Congress 
can  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof,"  and  is 
thus  deprived  by  the  Constitution  of  legislative  power 
over  mere  religious  opinions,  it  has  power  to  inter- 
fere with  acts  and  practices  in  violation  of  social 
duties,  or  subversive  of  good  order.  Yet  polygamy 
still  exists  in  Utah,  notwithstanding  the  power  of 
Congress,  aided  with  the  sanction  of  the  highest 
legal  tribunal  in  the  land  and  the  moral  protest  of 
the  American  people. 

Double  marriage,  and  incidentally  the  charge  of 
bigamy,  may  arise  in  two  classes  of  cases :  first, 
where  one  marries  relying  upon  the  belief  that  a 
prior  marriage  has  been  dissolved  by  death,  which  is 
presumed  on  account  of  the  prolonged  absence  of  one 
of  the  parties,  of  whose  whereabouts  no  tidings  had 
been  received  for  years,  or  in  consequence  of  rumors, 
appearing  to  be  well  founded,  under  circumstances 
which  justify  such  belief;  second,  where  one  marries 
relying  uj3on  the  belief  that  a  prior  marriage  has 
been  dissolved  by  a  judgment  of  divorce.  Wliere 
absence  is  the  ground  of  justification  for  a  double 
marriage,  the  law  declares  how  long  such  absence 
must  continue  before  a  second  marriage  is  permitted. 
This  period  of  time,  as  has  been  intimated,  varies  in 


BIGAMY  AND  ITS  CONSEQUENCES.  73 

different  States.  Where  a  judgment  of  divorce  is 
the  ground  of  justification,  a  charge  of  bigamy  may 
be  sustained,  either  because  the  divorce  is  void  or 
because  it  is  valid.  This  proposition  seems  to  in- 
volve a  contradiction  of  terms ;  but  in  consequence 
of  the  peculiar  provisions  of  law  which  exist  upon 
the  subject  in  a  number  of  neighboring  and  contigu- 
ous States  independent  of  each  other  and  absolute- 
ly sovereign  with  regard  to  divorce  legislation,  the 
proposition  is  literally  true.  A  single  example  will 
illustrate  this  apparent  anomaly.  In  Maryland  if  a 
divorce  is  granted  the  court  may  in  its  discretion 
forbid  the  guilty  party  to  marry  during  the  lifetime 
of  the  innocent  party,  and  a  violation  of  the  prohibi- 
tion constitutes  bigamy.  So  that  a  man  or  woman 
may  be  divorced  and  their  marriage  dissolved  abso- 
lutely, and  yet  if  the  guilty  party  should  wed  con- 
trary to  the  judgment  of  divorce,  the  act  would  be 
criminal.  His  guilt  w^ould  be  established  as  certain- 
ly as  if  the  first  marriage  had  never  been  dissolved, 
or  as  if  the  judgment  of  divorce,  instead  of  being 
valid  and  binding,  were  void  and  of  no  validity. 

It  is  not  difficult  to  understand  that  if  the  divorce, 
which  is  relied  upon  to  sustain  the  position  that  the 
first  marriage  has  been  dissolved,  is  not  a  valid  di- 
vorce, the  second  marriage  will  be  void,  since  the  first 
still  exists.  But  in  some  States,  as  in  the  case  just 
referred  to,  the  guilty  party  against  whom  a  divorce 
has  been  obtained  is  forbidden  again  to  marry  during 
the  lifetime  of  the  innocent  party  without  leave  of 


74  THE    GEOGRAPHY    OF  MARRIAGE. 

tlie  court.  In  some  States,  as  in  Maryland,  if  tliis 
prohibition  is  violated,  the  act  will  constitute  bigamy. 
In  others  it  will  invalidate  the  second  marriage,  and 
subject  the  offender  to  punishment,  as  for  a  contempt 
of  court,  though  the  act  may  not  constitute  bigamy 
in  the  strict  sense  of  the  word. 

In  considering  the  subject,  therefore,  it  will  be 
necessary  to  examine  the  crime  of  bigamy  in  a  gen- 
eral way,  and  the  penalties  prescribed  for  the  offense  ; 
then  to  inquire  as  to  the  consequences  of  marriage 
under  belief  that  an  absent  husband  or  wife  is  dead  ; 
to  investigate,  in  the  next  place,  as  to  foreign  di- 
vorces, w^hen  they  will  not  be  regarded  as  valid  or 
binding;  and  lastly,  to  consider  as  to  the  prohibi- 
tion against  divorced  persons  marrying  again.  These 
subjects  wdll  be  discussed  in  the  order  named.  The 
consequences  which  follow  the  crime  of  bigamy  are 
to  be  deplored,  not  only  ^\ith  respect  to  the  question 
of  the  punishment  prescribed  for  the  offense,  but  as 
regards  the  sufferings  of  an  innocent  husband  or 
wife,  or  blameless  offspring,  wholly  without  power 
to  shield  themselves  a2:ainst  a  crime  which  involves 
the  legitimacy  of  their  existence. 

Bigamous  marriages,  under  the  law,  are  void,  or 
in  a  few  cases  liable  to  be  so  declared.  But  in  some 
States,  by  a  humane  provision  of  the  legislature,  the 
children  of  such  marriages  are  made  legitimate,  and 
hence  are  spared  a  part  of  the  odium  and  disgrace  en- 
tailed by  the  conduct  of  parents,  which,  in  the  nature 
of  things,  it  is  not  in  their  power  to  avert  or  control. 


BIGAMY  AND  ITS  CONSEQUENCES.  75 

The  pains  and  penalties  prescribed  for  this  offense  are 
fine  or  imprisonment,  or  l^oth,  according  to  the  place 
where  the  crime  is  committed.     - 

In  some  States  these  penalties  are  more  severe 
than  in  others.  The  heaviest  punishment  is  in  Ari- 
zona, Kentucky,  Mississippi,  and  Tennessee.  In  the 
last-named  State  the  penalty  u^^on  conviction  is  im- 
prisonment not  less  than  two  nor  more  than  twenty- 
one  years.  No  fine  is  prescribed.  In  Kentucky  the 
sentence  may  be  not  less  than  three  nor  more  than 
nine  years.  In  Mississippi  the  imprisonment  shall 
not  exceed  ten  years ;  no  minimum  period,  how- 
ever, is  prescribed.  In  Arizona  the  maximum  im- 
prisonment is  ten  years  ;  no  minimum  ;  and  also  a 
fine  not  exceeding  two  thousand  dollars. 

The  lightest  penalty  may  be  imposed  in  Pennsyl- 
vania, New  Hampshire,  and  Texas.  In  the  first- 
named  State  the  guilty  party  must  pay  a  fine  not 
exceeding  one  thousand  dollars  and  undergo  impris- 
onment, by  solitary  confinement  at  labor,  not  exceed- 
ing two  years.  There  being  no  minimum  fixed  it  is 
mthin  the  power  of  the  court  to  make  the  punish- 
ment nominal.  In  Texas  there  is  no  fine,  and  the 
imprisonment  cannot  exceed  three  years,  with  no 
minimum  term  prescribed.  In  New  Hampshire,  if 
both  fine  and  imprisonment  are  imposed;  the  fine 
shall  not  exceed  five  hundred  dollars,  and  the  im- 
prisonment one  year.  If  the  sentence  is  simply  im- 
prisonment, it  shall  not  exceed  three  years. 

It  has  been  observed  that  in  some  places  the  sins 


^6  THE    GEOGRAPHY  OF  MARRIAGE. 

of  the  parents,  in  cases  of  bigamy,  are  not  visited 
upon  the  children,  and  the  latter  are  declared  to  be 
legitimate,  notwithstanding  the  marriage  may  be 
void.  This  is  true  in  California  and  Dakota.  In 
California  and  New  York,  where  the  husband  or 
wife  of  the  first  marriage  has  been  five  years  absent, 
and  not  known  to  be  living  in  that  time,  or  was  gen- 
erally reputed  and  believed  by  the  j)arty  marrying 
again  to  be  dead,  the  second  marriage  will  be  valid 
until  its  nullity  is  adjudged  by  a  court  of  competent 
Jurisdiction.  In  Iowa  a  bigamous  marriage  is  void, 
but  if  the  parties  live  together  after  the  death  of  the 
former  husband  or  wife,  the  second  marriage  will  be 
valid. 

But  the  mere  fact  that  a  person  marries,  while  a 
former  husband  or  wife  is  living,  does  not  neces- 
sarily make  the  person  marrying  a  second  time  guilty 
of  the  crime  of  bigamy,  though  it  may  render  the 
second  marriage  void.  In  order  to  constitute  bigamy, 
there  must  be  disobedience  of  the  law,  which  must 
result  from  a  guilty  mind,  or  a  mind  criminally  igno- 
rant. It  may,  and  often  does  happen,  that  the  second 
marriage  is  entered  into  in  the  full  belief  that  the 
first  has  been  dissolved  by  death,  because  the  absent 
husband  or  wife  may  be  reported  dead,  or  may  have 
remained  absent  so  long  that  death  is  presumed. 
It  is  imjjortant  to  know,  therefore,  how  long  a  per- 
son is  bound  to  wait,  without  having  received  any 
tidings  of  an  absent  husband  or  wife,  before  con- 
tracting a  second  marriage,  in  order  to  escape  the 


BIGAMY  AND   ITS   CONSEQUENCES.  y/ 

pains  and  penalties  of  bigamy  in  case  tlie  long-lost 
absentee  should  suddenly  appear  and  claim  tis  mari- 
tal rights.  In  some  localities  this  is  longer,  in  others 
shorter.  This  phase  of  double  marriage,  with  respect 
to  absence,  will  now  be  discussed. 


CHAPTER  XL 

MARRIAGE    UNDER    BELIEF    THAT    ABSENT    HUSBAND    OR 
WIFE   IS    DEAD. 


"  '  This  miller's  wife,' 
He  said  to  Miriam,  '  that  you  told  me  of, 
Has  she  no  fear  that  her  first  husband  lives  ?  '  " 

Tennyson. 


It  sometimes  happens,  though,  rarely  in  this  age 
of  discovery  and  science,  that  a  husband  or  wife 
has  remained  absent  for  years,  without  tidings  of 
any  sort  as  to  his  or  her  whereabouts  and  is  reported 
to  be  dead,  or,  on  account  of  such  protracted  silence^ 
believed  to  be  dead.  Under  such  circumstances  a 
second  marriage  may  be  contracted  in  good  faith. 
But  suppose,  after  the  honeymoon  is  over,  and  chil- 
dren are  born  of  the  second  marriage,  the  long- 
lost  husband  should  suddenly  make  his  appear- 
ance, robust  and  vigorous,  insisting  upon  assuming 
the  domestic  relations  which  have  been  so  long 
interrupted.  The  dramatic  effect  of  such  scenes 
aifoi'd  subjects  for  tlie  skill  of  the  poet  and  drama- 
tist. But  after  the  strange  and  intense  excitement 
which  such  a  culmination  is  liable  to  produce, 
and  more  important  tlian  the  sentiment  and  poetry 
suggested  by  the  situation,  the  hard   and    difficult 

78 


ENOCH-ARDEN  MARRIAGES.  79 

question  as  to  the  legal  status  of  two  households 
presents  itself.  Whose  wife  is  she  ?  Is  the  second 
marriage  valid  ?  Is  anybody  guilty  of  bigamy,  and 
liable  to  suffer,  in  addition  to  the  pain  and  mortifica- 
tion which  such  a  state  of  things  must  produce  in  a 
refined  and  sensitive  nature,  the  disgrace  of  fine  and 
imprisonment  ?  The  solution  of  this  question  will 
depend,  first,  upon  how  long  the  missing  husband  or 
wife  has  been  absent  without  tidings  as  to  his  or 
her  whereabouts  ;  and  second,  in  what  part  of  the 
United  States  the  second  marriage  was  celebrated. 
The  question  of  geography  again  presents  itself. 
In  some  States,  if  the  I3arty  has  been  absent  long 
enough,  the  second  marriage  will  be  valid,  and  the 
returned  wanderer  will  be  barred  altogether  of  his 
conjugal  rights  and  privileges  ;  while  in  other  States 
the  prolonged  absence  will  protect  the  parties  to  the 
second  marriage  from  the  penalties  incident  upon 
the  charge  of  bigamy.  First,  we  shall  examine  as 
to  whether  the  second  marriage  is  criminal ;  second, 
as  to  whether  it  is  valid.  In  some  States,  if  the 
absence  extends  over  a  period  of  seven  years  there 
can  be  no  charge  of  bigamy ;  in  other  States,  and 
in  fact  in  a  majority,  this  is  so  after  a  period  of 
five  years.  In  two  States,  Florida  and  New  Hamp- 
shire, three  years  are  sufficient  to  shield  the  par- 
ties ;  while  in  Pennsylvania  the  limitation  is  two 
years,  if  after  that  period  there  is  a  rumor,  in  ap- 
pearance well  founded,  that  the  absent  one  is 
dead.      During  this   period   of   absence   the   party 


8o  THE   GEOGRAPHY  OF  MARRIAGE. 

marrying  again  must  have  received  no  tidings  of  the 
absent  one,  and  the  absence  is  computed  from  the 
date  when  tidings  were  last  received.  There  are 
but  few  exceptions  to  this  rule.  In  Arkansas,  Kan- 
sas, Mississippi,  and  Missouri  if  the  absentee  remains 
continually  out  of  the  United  States  for  five  suc- 
cessive years,  that  fact  will  constitute  a  defense 
to  the  charge  of  bigamy ;  but  if  the  missing  one  has 
been  within  the  United  States,  the  additional  fact 
must  be  shown  that  no  tidings  or  intelligence  of 
such  absentee  had  ever  been  received.  In  Arkansas, 
Kansas,  and  Mississippi  the  period  of  absence  is 
limited  to  five  years,  while  in  Missouri  the  time  is 
seven  years.  The  seven-year  period  is  adopted  also 
in  Maine,  Maryland,  Massachusetts,  Minnesota,  North 
Carolina,  Oregon,  Rhode  Island,  South  Carolina, 
Vermont,  Virginia,  West  Virginia,  and  Wisconsin. 
In  Florida,  Iowa,  and  New  Hampshire  the  period 
is  three  years ;  in  Pennsylvania  two  years,  with  the 
qualification  above  noted ;  and  in  the  remaining 
States  and  Territories  the  time  is  five  years. 

Thus  it  will  be  seen  that,  with  respect  to  absence, 
a  second  marriage  criminal  in  one  part  of  the  coun- 
try might  not  be  punishable  at  all  in  another  part. 
A  supposed  widow  at  Des  Moines,  or  Jacksonville, 
or  Concord,  after  waiting  three  years  without  tidings 
of  her  absent  husband,  could  marry  without  being 
subject  to  the  penalties  which  are  incident  to  the 
crime  of  bigamy,  while  if  she  happened  to  be  in 
Atlanta,  or  Augusta,  or  Indianapolis,  or  in  any  State 


ENOCH-ARDEN  MARRIAGES.  8 1 

requiring  five  years'  absence,  the  consequences  might 
be  serious  indeed.  The  importance  of  examining 
the  particular  law  of  the  State  where  the  parties 
reside,  when  a  second  marriage  is  contemplated, 
when  there  is  no  positive  knowledge  of  the  death 
of  the  first  husband  or  wife,  is  apparent. 

Most' of  the  States  have  established  a  fixed  period 
of  limitation,  after  which  time,  if  no  tidings  have 
ever  been  had,  and  the  absent  one  is  not  known  to 
be  livinon  durino;  the  whole  of  the  time,  the  charo;e 
of  bigamy  cannot  be  sustained.  In  some  few 
States,  however,  the  rule  is  even  more  liberal,  and 
w^here  the  absent  one  is  generally  reputed  or  be- 
lieved to  be  dead,  that  fact,  in  case  of  a  second 
marriage,  will  constitute  a  defense  to  the  charge  of 
bigamy,  should  the  rumor  of  death  prove  to  be 
false.  In  Delaware,  if  there  has  been  prolonged 
absence,  or  other  good  ground  to  believe  the  for- 
mer husband  or  wife  dead,  it  is  sufficient  excuse. 
In  New  Hampshire  it  is  enough  to  show  that  the 
absentee  shall  be  reported  and  generally  believed  to 
be  dead.  In  Pennsylvania  the  false  rumor  must 
have  been  "  on  appearance  well  founded  "  ;  while  in 
Michigan,  Tennessee,  and  Washington  Territory  it 
must  appear  that  the  accused  had  "  good  reason  to 
believe  "  the  absent  one  to  be  dead. 

Having  shown  under  what  circumstances,  in  par- 
ticular States,  a  second  marriage  will  not  be  regarded 
as  criminal,  in  law,  though  it  may  be  void,  it  remains 
to  be  shown  in  what  localities  such  second  marriage 


82  THE    GEOGRAPHY  OF  MARRIAGE. 

will  be  not  only  technically  an  innocent  union,  but 
an  absolutely  valid  one.  In  Louisiana,  after  ten  years' 
absence,  without  any  news  from  the  absentee,  the 
husband  or  wife  may  marry,  and  such  second  mar- 
riage will  be  in  all  respects  valid  ;  and  the  absentee, 
upon  his  or  her  return,  is  free  to  marry  again,  but 
will  not  be  restored  to  prior  conjugal  rights.  In 
the  State  of  Arkansas,  however,  if  a  husband  or 
wife  is  abandoned,  and  the  absentee  goes  out  of  the 
State  and  stays  away  five  years,  without  being  known 
to  be  living,  the  husband  or  wife  so  abandoned  is  at 
liberty,  under  such  circumstances,  to  marry ;  and  such 
second  marriage  will  be  legal.  In  Califoruia,  Idaho, 
and  Minnesota  the  second  marriage  is  valid  until  it 
is  annulled  by  a  court  of  competent  jurisdiction,  and 
if  no  such  proceedings  are  ever  instituted,  the  second 
marriage  will  continue  to  be  valid  and  binding.  In 
Iowa,  if  the  parties  to  the  second  marriage  live  to- 
gether until  the  first  husband  or  wife  dies,  then  such 
subsequent  marriage  becomes  valid  from  and  after 
such  death. 


CHAPTER  XII. 


FOREIGN   DIVORCES PROHTBITIOISr  AS   TO  MARRIAGE   OF 

DIVORCED    PERSOJS^S. 


"  If  you  would  have  the  nuptial  union  last. 
Let  \'irtue  be  the  bond  that  ties  it  fast." 


MoifOGA3iY,  as  has  been  observed,  is  the  rule  of 
social  life  which  prevails  throughout  the  United 
States,  save  only  in  Utah,  where,  though  polygamy 
is  sanctioned  by  a  local  sect  within  its  borders,  the 
practice,  nevertheless,  is  forbidden  by  the  laws  of 
Congress  having  Jurisdiction  over  the  Territory.  The 
ease,  however,  with  which  divorces  may  be  obtained 
in  many  States  has  induced  persons  to  visit  them 
and  gain  a  residence  for  the  sole  purpose  of  dis- 
solving the  marriage  bond,  and,  that  object  accom- 
plished, they  frequently  return  to  their  place  of 
domicile,  or  drift  into  other  parts  of  the  country, 
and  again  take  upon  themselves  marital  obligations. 
Children  born  of  these  subsequent  marriages  fre- 
quently have  to  suffer  mth  their  parents  by  reason 
of  the  fact  that  the  States,  being  independent  sov- 
ereignties, so  far  as  the  law  of  marriage  and  divorce 
is  concerned,  have  chosen  to  adopt  a  variety  of  laws 
upon  the  suliject,  differing  radically ;  and  by  reason 

83 


84  THE   GEOGRAPHY  OF  MARRIAGE. 

of  tlie  haste,  or  eagerness,  and  often  tlie  secrecy  witli 
wWcli  divorces  have  been  obtained  away  from  home, 
it  frequently  happens  that  the  first  marriage,  which 
was  supposed  to  have  been  legally  dissolved,  was 
not  dissolved  at  all.  The  result  leads  to  all  sorts  of 
domestic  woes,  and  the  difficulties  and  embarrass- 
ments which  grow  out  of  matrimonial  entanglements 
of  this  character  bring  only  misery  and  disaster.  If 
the  first  marriage  has  not  been  legally  dissolved, 
then  the  party  marrying  again  may  be  guilty  of 
bigamy,  and  may  suffer  pains  and  penalties  by  way 
of  fine  or  imprisonment  or  both,  in  addition  to  the 
wretchedness  entailed  upon  others  who  may  be  wholly 
innocent.  This  result,  as  has  been  suggested,  will  some- 
times follow  even  where  the  first  marriage  is  legally 
dissolved ;  as,  for  instance,  if  the  wife  should  succeed 
in  obtainiuo;  a  divorce  in  New  York  for  the  hus- 
band's  wrong,  and  the  husband  should  again  marry 
within  the  State  witliout  waiting  for  his  divorced 
wife  to  marry,  and  without  receiving  a  certificate  of 
good  behavior  from  the  court  in  which  the  divorce 
was  obtained,  after  a  period  of  five  years,  and  pro- 
curing the  decree  to  be  modified  so  as  to  permit  such 
guilty  husband  to  marry  again.  This  second  marriage 
in  New  York  is  void.  If,  however,  the  guilty  hus- 
band went  out  of  the  State  and  got  married,  tlie 
legality  of  the  second  marriage  would  depend  upon 
the  la^v  of  the  State  where  it  took  place.  If  the 
ceremony  was  performed  at  Leavenworth  orTopeka, 
or  anywhere  in  the  State  of  Kansas,  it  might  prove 


FOREIGN  DIVORCES.  85 

unfortunate  when  it  was  discovered  that  by  the  law 
of  that  State,  in  order  to  successfully  defend  the 
charge  of  bigamy,  the  accused  would  have  to  show 
that,  by  the  decree  of  divorce  dissolving  the  first 
marriage  in  New  York,  he  was  not,  by  the  decree  or 
by  the  law  of  that  State,  prohibited  from  marrying 
again,  or,  if  so  prohibited,  that  the  time  of  such  dis- 
ability had  expired.  If  the  second  marriage  hap- 
pened to  be  in  Kentucky,  then,  under  the  bigamy 
statute  in  that  State,  a  divorced  person,  so  marrying, 
would  have  to  show  that  he  had  been  permitted 
again  to  marry.  If  the  second  alliance  was  con- 
tracted in  the  city  of  Boston  or  elsewhere  in  the 
State  of  Massachusetts  within  two  years  after  the 
first  divorce,  it  might  cause  the  groom  great  anxiety, 
in  case  bigamy  was  charged,  to  learn  that,  in  order 
to  successfully  defend  himself,  it  will  not  be  sufficient 
to  show  that  he  had  been  legally  divorced,  but  that 
he  was  not  the  guilty  cause  of  such  divorce.  The 
same  result  would  follow  if  the  second  wedding  took 
place  in  St.  Paul  or  elsewhere  in  Minnesota,  or  any- 
where among  the  orange  blossoms  of  Florida,  save 
only  that  in  these  States  there  seems  to  be  no  period 
of  limitation  as  in  Massachusetts.  In  Missouri  a 
divorced  person,  manying  again,  must  show  that  the 
decree  of  divorce  first  obtained  contained  no  pro- 
vision whereby  he  was  forbidden  to  marry. 

A  more  perplexing  state  of  affairs  will  follow  if 
the  first  divorce  was  granted  in  Nebraska,  and  after- 
wards the  party  who  procured  the  divorce  and  was 


86  THE    GEOGRAPHY   OF  MARRIAGE. 

not  the  guilty  party  should  again  marry.  Under  the 
laws  of  that  State  neither  party  is  allowed  to  marry 
until  six  mouths  after  the  divorce  has  been  granted, 
because  a  party  has  six  months  in  which  to  appeal, 
where  a  decree  of  divorce  is  obtained  against  him  or 
her.  So  that  a  person  obtaining  a  divorce  in  Omaha, 
or  elsewhere  in  Nebraska,  though  innocent  of  the 
charge  on  which  the  divorce  was  sought,  is  not 
allowed  to  marry  until  the  defeated  party  has  had 
an  opportunity  to  appeal  from  the  judgment  dis- 
solving the  marriage.  The  same  rule  applies  in 
Maine,  perhaps,  where  it  must  be  shown  that  the 
party  has  been  legally  and  finally  divorced.  This 
doubtless  means  that  it  must  appear  that  the  divorce 
is  final,  for  the  reason  that  no  appeal  has  been  taken 
or  can  be  taken  from  the  decree.  If  the  first  mar- 
riage was  dissolved  in  New  Orleans,  or  elsewhere  in 
Louisiana,  if  tlie  divorced  wife,  though  the  innocent 
party,  married  again  without  waiting  ten  months, 
she  might  incur  difficulties  and  complications  in 
view  of  the  law  of  that  State,  which  declares  that 
the  wife  shall  not  be  at  liberty  to  contract  another 
marriage  until  ten  months  after  the  dissolution  of 
her  preceding  marriage.  In  this  period  of  limitation, 
which  seems  to  be  confined  to  the  woman,  the  subtle 
refinement  of  the  civil  code  and  Code  Napoleon 
anticipates  the  ]>ossibility  of  a  child  l)orn  after  the 
second  wedding,  which  })roperly  might  be  the  fruits 
of  the  first. 

A  singular  complication  would  arise  if  the  man 


FOREIGN  DIVORCES.  8/ 

who  got  the  divorce  lived  at  Wilmington,  or  New- 
castle, or  elsewhere,  in  the  State  of  Delaware,  and 
was  entitled  to  a  divorce  under  the  la^vs  of  Dela- 
ware. Perhaps,  in  order  to  avoid  scandal,  he  deemed 
it  wise  to  go  out  of  the  State  and  get  the  divorce. 
It  may  be  that  his  Avife  defended  the  suit,  and  that 
the  court  had  Jurisdiction  over  both  parties,  and 
granted  the  divorce  to  the  husband.  With  a  decree 
dissolving  the  marriage  in  his  possession,  granted  by 
a  court  of  competent  jurisdiction,  after  the  wife  had 
been  fully  heard,  the  husband  returns  to  Delaware 
and  settles  in  another  part  of  the  State  from  that  in 
which  he  formerly  resided.  He  files  away  the  decree 
with  his  title-deeds  and  other  valuable  papers  ;  and, 
perhaps,  after  the  lapse  of  several  years  he  again 
marries,  in  good  faith  believing  he  had  a  right  to  do 
so.  It  would  indeed  be  a  source  of  mortification 
and  chagrin  if  he  should  discover,  when  too  late, 
that  his  first  marriage  remained  still  undissolved  in 
Delaware,  notwithstanding  his  foreign  divorce,  be- 
cause the  Delaware  law  declares  that  when  an  inhab- 
itant of  that  State  goes  out  of  it  to  obtain  a  divorce 
for  any  cause  which  arose  in  Delaware,  or  for  any 
cause  not  authorized  by  its  laws,  the  divorce  so 
obtained  shall  not  opera.te  in  Delaware,  and  shall  be 
of  no  force  or  effect  there.  This  provision  of  the 
Delaware  statute  may  be  unconstitutional,  but  the 
embarrassment  of  testing  that  question  remains. 

In  all  other  cases,  if  the  foreign  tribunal  had  juris- 
diction of  both  the  parties  and  the  subject-matter, 


88  THE   GEOGRAPHY  OF  MARRIAGE. 

such  foreign  divorce  will  be  valid.  This  rule  applies 
also  in  Maine  and  Massachusetts  ;  but  in  the  latter, 
if  the  court  in  the  State  where  the  divorce  was 
granted  had  jurisdiction  over  both  husband  and 
wife,  as  well  as  over  the  subject-matter, — that  is,  if 
the  parties  both  appeared  in  court  and  tried  the 
cause,  so  that  there  was  no  default  as  to  either,  the 
foreign  divorce  would  be  upheld  in  Massachusetts, 
but  not  otherwise. 

In  New  York  the  rule  is  that  where  a  party  has 
been  divorced  for  a  violation  of  the  bridal  vow,  such 
guilty  person  is  not  only  forbidden  again  to  marry 
during  the  lifetime  of  the  innocent  party,  without 
leave  of  the  court  which  granted  the  divorce,  but 
such  subsequent  marriage,  if  performed  within  New 
York  State,  is  void.  Nor  is  it  material  where  the 
guilty  party  was  divorced,  whether  within  the  State 
or  out  of  it. 

The  importance,  therefore,  of  the  rule  which  pre- 
vails in  each  particular  State  or  Territory  on  this 
subject  becomes  apparent,  in  order  that  the  geogra- 
phy of  the  situation  may  be  fully  understood,  so 
that  blunders  which  may  be  disastrous  may  be 
avoided. 

One  of  the  worst  abuses  yi  divorce  legislation,  and 
one  which  has  afforded  greater  opportunity  for  in- 
justice and  misery  than  perhaps  any  other,  is  that 
which  authorizes  a  resident  of  one  State  to  sue  for 
a  divorce  Avhere  the  defendant  resides  in  another. 
A  summons  is  printed  six  or  eight  times  in  some 


FOREIGN  DIVORCES.  89 

weekly  paper,  published,  it  may  be,  in  a  distant 
county,  having  Avithin  it  no  city  or  town  of  sufficient 
population  to  support  a  daily  paper.  It  may  be  the 
absent  defendant  is  wholly  unaware  that  proceedings 
to  dissolve  his  or  her  marriage  are  pending.  If  the 
only  means  of  communicating  that  fact  is  the  publi- 
cation of  a  summons  in  an  obscure  country  paper, 
published  in  a  distant  State,  in  some  remote  county, 
it  will  be  impossible  for  the  defendant  to  know  any 
thing  about  the  suit.  Perhaps  the  defendant  is  de- 
signedly absent,  it  being  understood  that  he  or  she 
is  to  know  nothing  about  the  suit  until  the  decree 
dissolving  marriage  has  been  obtained.  After  the 
period  of  publication  expires,  the  plaintiff,  in  the 
absence  of  the  defendant,  who  remains  away,  either 
collusively  or  through  ignorance  that  a  divorce  is 
being  sought,  makes  such  proofs  as  are  required,  and 
upon  this  evidence  a  decree  is  made  dissoMng  the 
marriage.  Such  proceedings  practically  operate  to 
make  divorce  free.  The  leg^islation  which  suffers 
this  state  of  things  encourages  fraud  and  immorality, 
and  renders  the  sacred  obligations  assumed  at  the 
altar  a  mere  temporary  arrangement,  to  be  termi- 
nated and  dissolved  when  the  convenience  or  incli- 
nation of  the  parties  desires.  In  morals  this  is  an 
evil  scarcely  less  detestable  than  that  suggested  by 
polygamy  or  polyandry.  A  judgment  thus  obtained, 
while  it  may  be  sustained  in  some  States,  A\all  be 
regarded  in  others  as  absolutely  void  and  of  no 
binding  force  or  effect  whatever.     This  latter  view 


90  THE   GEOGRAPHY  OF  MARRIAGE. 

has  been  adopted  in  Xew  York  by  tlie  liighest  tribu- 
nal in  the  State.  It  is  based  upon  the  clearest  prin- 
ciples of  law,  and  is  in  harmony  with  every  doctrine 
of  morality.  No  court  can  make  a  Judgment  against 
a  man  who  is  absent  from  the  State  where  the  judg- 
ment was  rendered,  and  who  never  appeared  in  the 
suit.  P]'operty  within  the  State  may  be  seized  and 
sold  during  the  absence  of  the  owner ;  but  so  far  as 
a  personal  obligation  is  concerned,  no  binding  judg- 
ment can  be  rendered  against  an  individual  who  is 
absent  from  the  jurisdiction  and  never  appears  in  the 
case.  How  then  can  the  most  sacred  of  all  personal 
obligations  be  dissolved  by  a  judgment  rendered 
against  one  who  never  was  within  the  jurisdiction  of 
the  court  seeking  to  decree  such  a  dissolution. 

This  principle  is  illustrated  in  a  case  where  a 
woman  went  from  New  York  to  Ohio,  and  got  a 
divorce  from  her  husband  under  the  Ohio  laws.  He 
being  absent,  the  papers  in  the  case  were  served 
upon  him  by  publication  in  a  newspaper  for  a  speci- 
fied period.  When  he  learned  that  the  Ohio  court 
had  granted  the  petition  of  his  wife  by  dissolving  the 
marriage,  and  taking  it  for  granted  that  the  Ohio  di- 
vorce was  valid,  he  married  in  New  York,  and  was  con- 
victed of  bigamy.  He  pleaded  the  Ohio  judgment,  but 
learned  that  the  Ohio  court  could  not  make  a  judg- 
ment against  a  person  Avho  was  never  in  Oliio  and 
was  not  even  represented  there.  AVithout  referring 
to  the  merits  of  the  case  just  cited,  it  cannot  be  said 
that  this  rule  can  work  a  hardship  or  result  in  injury 


FOREIGN  DIVORCES.  9 1 

to  an  innocent  party.  If  a  marriecl  man  never  learns 
tliat  be  lias  been  divorced,  he  will  not  attempt  a 
second  marriage.  If  lie  attempts  a  second  marriage, 
relying  on  a  judgment  dissolving  the  first,  granted  in 
his  absence,  in  a  State  he  was  never  in,  he  acts  at 
his  peril.  Such  divorces  are  obtained  either  Avdth  or 
Avithout  the  knowledge  of  the  absentee.  If  with 
such  knowledge,  then  it  is  fair  to  presume  that  the 
defendant  had  an  object  in  not  appearing  and  de- 
fending the  suit.  If  the  plaintiff  was  entitled  to 
the  divorce,  what  fair  reason  could  be  assigned  for 
going  into  a  distant  State  to  procure  it,  when  the 
courts  at  home  are  always  open?  If  the  plaintiff  is 
not  entitled  to  it,  the  farther  away  from  home  the 
application  is  made-,  the  better  ^\'ill  be  the  prospect 
of  success,  and  the  less  likelihood  of  collusion  being 
discovered.  Foreio;n  divorces  aorainst  non-residents 
afford  the  most  convenient  mode  of  concealino;  col- 
lusion  between  the  parties ;  and  a  divorce  obtained 
by  collusion  is  a  fraud  upon  the  law  and  is  contrary 
to  every  principle  of  sound  morality. 

Every  proper  influence  should  be  brought  to  bear 
to  expose  a  system  which  sanctions  one-sided 
divorces,  procured  by  publication,  against  absent 
defendants  ;  and  every  effort  should  be  put  forth  to 
bring  about  the  abolition  of  all  laws  whereby  they 
are  rendered  possible.  They  are  not  legal  or  valid 
judgments  which  are  at  all  binding  on  the  absentee, 
and  are  not,  therefore,  entitled  under  the  Constitu- 
tion to  full  faith  and  credit  in  any  State ;  and  the 


92  THE   GEOGRAPHY  OF  MARRIAGE. 

Court  of  Appeals  of  the  State  of  New  York,  in  so 
declaring,  have  rendered  a  service  to  society  and 
good  government.  As  lias  been  truly  said  by  tlie 
Keverend  Heber  Newton,  the  esteemed  rector  of  All 
Souls  Church  in  the  City  of  New  York,  in  referring 
to  this  subject :  "  We  need  to  feed  a  public  sentiment 
which  will  lift  marriage  above  the  shameless  huckster- 
ing of  that  Vanity  Fair  which  deals  in  the  bodies  and 
souls  of  women.  We  need  to  hallow  in  the  minds 
of  our  young  people  the  dream  of  love,  and  to  guide 
them  more  carefully  amid  the  currents  Avhich  drift 
them  into  wedlock  only  to  strand  them  upon  the 
shoals  of  divorce." 


CHAPTER  XIIL 


PROHIBITION^    AS    TO    MAERIAGE    OF    DrVORCED    PERSONS 
FURTHER    CONSIDERED. 


"  Never  a  tear  bedims  the  eye, 

That  time  and  patience  will  not  dry  ; 

Never  a  lip  is  curved  with  pain, 

That  can't  be  kissed  into  smiles  again." 

— Harte. 


From  what  has  been  said  with  regard  to  double 
marriage,  it  is  clear  that  the  charge  of  bigamy  may 
arise  where  the  first  marriage  has  not  been  dis- 
solved, as  well  as  in  the  class  of  cases  where  it 
has  been.  The  somewhat  novel  postulate  is  estab- 
lished, in  view  of  the  peculiarity  of  the  different 
laws  upon  the  subject,  that  a  person  may  commit 
bigamy  whether  a  prior  divorce  is  valid  or  invalid. 

It  has  been  shown  that  a  foreign  divorce  may  be 
worthless,  illegal,  and  void,  having  been  rendered 
against  a  person  who  was  absent  from  the  State  or 
for  other  causes  ;  and  hence  such  divorce  can  aiford 
no  protection  where  the  party  marries  again.  It  has 
also  been  observed  that  some  of  the  divorce  laws 
in  the  United  States  are  so  framed  that  a  guilty 
party,  against  whom  it  is  procured,  will  be  forbid- 
den again  to  marry  during  the  lifetime  of  the  inno- 

93 


94  THE   GEOGRAPHY  OF  MARRIAGE. 

cent  party,  or  for  a  specified  period  thereafter. 
Under  such  circumstances,  where  the  divorce  is  in 
every  respect  legal  and  binding,  and  operates  to 
dissolve  the  first  marriage  absolutely,  a  guilty  party 
who  assumes  a  second  marriage  may  nevertheless  be 
punished,  and  incur  the  penalties  prescribed  for  the 
crime  of  bigamy,  and  may  discover  also  that  his 
second  marriage  is  void.  In  the  one  case  he  suffers 
because  the  divorce  is  worthless  ;  in  the  other  he  is 
punished  by  reason  of  the  fact  that  the  divorce  is 
valid.  In  the  first  instance  it  is  a  sin  of  omission ; 
in  the  second,  a  sin  of  commission.  He  omits  to  take 
the  steps  necessary  to  make  the  divorce  legal  and 
binding  by  appearing  in  the  action  and  submitting 
himself  to  the  jurisdiction,  in  one  case,  and  in  the 
other  he  commits  the  sin  of  breaking  the  law  which 
prohibits  him  from  marrying  while  the  innocent  party 
to  the  divorce  is  alive.  The  effect  of  such  prohibition 
will  now  be  considered. 

If  one  has  been  guilty  of  a  marital  wrong,  and  for 
that  cause  divorced,  the  question  as  to  whether  such 
person  will  be  permitted  again  to  marry  while  the 
first  husband  or  wife  is  living,  and  the  validity  of 
such  subsequent  mai'riage,  will  depend  upon  the 
law  of  the  place  where  the  divorce  was  obtained 
or  where  the  second  marriage  is  solemnized. 

In  some  States  the  law  simply  prohibits  the  guilty 
party  from  marrying  again,  but  makes  no  provision 
as  to  whetlier  such  su])sequent  marriage  shall  be 
void.     If  there  is  simply  a  prohibition  imposing  a 


MARRIAGE   OF  DIVORCED  PERSONS.  95 

penalty,  while  a  guilty  person  might  incur  the 
23enalty,  it  is  a  question  whether  the  second  marriage 
would  or  would  not  be  sustained  as  valid.  But  in 
New  York  the  law  not  only  prohibits  the  guilty 
party  from  marrying  again  during  the  lifetime  of 
the  former  husband  or  wife,  or  without  leave  of  the 
court  granting  the  divorce,  but  declares  that  such 
subsequent  marriage  shall  be  absolutely  void.  If, 
therefore,  a  person  prohibited  from  marrying  under 
such  circumstances  should  nevertheless  attempt  to 
wed,  the  result  might  prove  disastrous,  not  only  with 
respect  to  the  penalty  but  also  with  respect  to  the 
validity  of  the  second  marriage.  Should  proceedings 
for  bigamy  be  instituted,  a  conviction  would  entail 
years  of  imprisonment  or  a  fine,  since  the  penalty 
prescribed  sometimes  embraces  both  fine  and  impris- 
onment. But  should  the  individual  be  so  fortunate 
as  to  escape  such  an  ordeal,  yet  the  subsequent  mar- 
riage would  be  invalid  ;  and  should  it  transpire  that 
children  were  born  of  the  union,  after  the  death  of 
either  parent,  the  subject  of  legitimacy  of  such  off- 
spring and  their  right  of  inheritance,  if  the  subject 
of  controversy,  might  result  in  disaster  entailing 
disappointment  and  disgrace,  with  respect  both  to 
fortune  and  family  honor. 

A  single  illustration  will  sufiSce  to  show  the 
importance  of  a  thorough  knowledge  as  to  this 
branch  of  the  subject,  in  order  to  avoid  a  world  of 
annoyance  and  vexation,  because  there  are  States  and 
countries  in  which  an  individual,  though  divorced 


g6  THE   GEOGRAPHY  OF  MARRIAGE. 

for  his  or  her  inconstancy,  may,  nevertheless,  law- 
fully marry  again,  and  such  second  marriage  will  be 
in  every  respect  legal  and  valid.  As  has  been  said, 
in  the  State  of  New  York  the  law  not  only  forbids 
the  guilty  party  to  marry  again  during  the  lifetime 
of  the  innocent  party,  without  leave  of  the  court, 
but  declares  that  a  subsequent  marriage  so  con- 
tracted shall  be  void.  The  punishment  is  not  con- 
fined merely  to  a  prohibition,  a  violation  of  which 
might  be  construed  merely  as  a  contempt  of  court, 
but  extends  to  the  subsequent  union,  and  invalidates 
it ;  thus  rendering  the  parties  liable  to  the  pains  and 
penalties  prescribed  for  bigamy,  and  depriving  their 
offspring  of  the  rights  of  inheritance.  The  declara- 
tion is  broad  and  sweeping  that  no  second  or  subse- 
quent marriage  shall  be  contracted  by  any  person 
during  the  lifetime  of  any  former  husband  or  wife^ 
unless  the  first  marriage  shall  have  been  dissolved  for 
some  cause  other  than  the  adultery  of  such  person ; 
or  unless  the  former  husband  or  wife  shall  have 
been  finally  sentenced  to  imprisonment  for  life,  ex- 
cept in  a  case  where  the  husband  or  wife  of  the  first 
marriage  shall  have  been  continuously  absent  five 
years,  and  not  known  by  the  person  subsequently 
marrying  to  be  living  during  that  time.  In  the  lat- 
ter case  the  second  marriage  is  void  only  from  the 
time  when  it  is  so  declared  by  the  court;  in  a  suit  to 
have  it  annulled. 

It  follows,  therefore,  that  if  a  jierson  has  been 
unfaithful   to  the   bridal   vow,  and  for  that   cause 


MARRIAGE   OF  DIVORCED  PERSONS.  97 

divorced,  no  matter  where,  whether  in  the  State  of 
New  York  or  out  of  it,  and  attempts  marriage  a 
second  time,  while  the  former  wife  is  alive,  in  the 
State  of  New  York,  without  taking  the  precaution 
to  have  the  wedding  in  Trenton  or  Jersey  City  or 
elsewhere  in  New  Jersey,  where  a  guilty  person, 
under  such  circumstances,  is  allowed  to  marry  again, 
his  mistake  in  geography  would  be  fatal;  unless 
cured  by  being  married  over  again  in  a  State  where 
a  guilty  divorced  person  may  lawfully  wed  a  second 
time.  And  in  seeking  a  safe  place  in  which  to  marry, 
such  divorced  person  would  be  wise  to  keep  out  of 
Alabama,  Florida,  Kansas,  Kentucky,  Massachusetts, 
or  Missouri,  as  will  presently  appear  by  a  reference 
to  the  laws  of  those  States  with  regard  to  bigamy  or 
polygamy. 

In  New  York,  however,  if  the  guilty  party  has 
been  adjudged  to  pay  alimony,  neither  his  second 
marriage,  nor  that  of  the  innocent  party,  ^^all  release 
him  from  the  obligation. 

Even  a  stranger,  residing  abroad  or  in  another 
State,  committing  this  error  in  New  York,  could  not 
well  plead  his  foreign  domicile,  since  the  law  of  the 
place  where  the  matrimonial  contract  was  attempted 
must  govern  in  deciding  whether  such  a  contract  ever 
had  any  validity.  If  there  was  no  marriage  contract 
in  New  York,  where  the  marriage  was  attempted, 
and  the  parties  are  not  husband  and  wife  there,  they 
certainly  do  not  become  such  by  merely  crossing  the 
ocean  or  passing  beyond  a  State  line. 


98  THE   GEOGRAPHY  OF  MARRIAGE. 

Sucli,  at  least,  is  the  law  as  at  present  interpreted 
by  the  highest  courts  of  the  State  of  New  York. 
The  tribunals,  however,  of  the  foreign  State  or 
country  which  is  the  domicile  of  the  parties,  or  of 
one  of  them,  and  whither  they  go  to  reside,  being 
absolutely  sovereign,  might  choose  to  sustain  the 
validity  of  such  a  marriage;  but,  to  do  so,  they 
would  be  driven  to  the  inconsistent  and  illoo;ical 
position  that  a  matrimonial  contract  which  never  had 
any  existence  or  validity  in  the  place  where  it  was 
sought  to  be  performed,  suddenly  springs  into  exist- 
ence and  becomes  valid  as  soon  as  the  parties  leave 
and  enter  another  State  or  country.  This  position 
presents,  also,  the  anomaly  of  a  marriage,  the  validity 
of  which  would  be  defined  by  geographical  limita- 
tions, since,  while  it  would  be  void  in  one  State, 
it  might  be  held  valid  in  another.  Should  the  sover- 
eignties giving  rise  to  the  conflict  happen  to  be 
remote,  the  legal  status  of  the  couple  in  the  inter- 
mediate and  contiguous  States  would,  until  solved 
by  each  respectively,  remain  an  enigma  and  a  riddle. 

Tlie  prohibiti(Hi,  however,  which  forbids  a  divorced 
guilty  party  from  marrying  again  can  have  no  force 
outside  of  the  State  or  country  "establishing  such 
prohibition.  Tlie  mistake,  therefore,  can  readily  be 
avoided  or  cured  by  having  the  ceremony  pei'formed 
in  a  State  or  country  'where  no  such  prohibition 
exists.  But  e'Ven  this  rule  has  a  peculiar  bearing  in 
Kansas,  where  the  law  pi'ovides  tliat  one  mai'rying 
out  of  the  State,  under  circumstances  which  would 


MARRIAGE   OF  DIVORCED  PERSONS.  99 

constitute  bigamy  in  Kansas,  becomes  liable  for  that 
crime,  if  he  afterwards  comes  into  that  State. 

It  will  be  important,  in  view  of  these  facts,  to  note 
that  in  Alabama,  Kentucky,  and  Missouri  a  divorced 
guilty  party  marrying  a  second  time  during  the  life- 
time of  the  first  husband  or  wife,  in  order  to  avoid  a 
charge  of  bigamy  must  show  that  the  court  granting 
the  divorce  also  granted  leave  to  marry  again.  In 
Florida,  a  person  who  is  the  guilty  cause  of  the 
divorce,  and  marries  during  the  lifetime  of  a  former 
husband  or  wife,  is  guilty  of  bigamy.  In  Kansas, 
the  guilty  party,  in  order  to  defend  a  charge  of 
bigamy,  must  show  that  he  was  not  prohibited  from 
marrying  again  by  the  decree  of  divorce,  or  that  the 
period  of  such  disability  had  expired. 

Thus  it  vn.ll  appear  what  rules  have  been  adopted 
in  some  of  the  States  with  regard  to  what  will  con- 
stitute a  defence  to  the  charge  of  bigamy,  in  case 
the  divorce  relied  upon  was  granted  in  another 
State.  It  remains  to  show  what  provisions  of  law 
exist  which  forbid  explicitly  divorced  persons  marry- 
ing again.  In  many  States  the  laws  remain  silent 
upon  this  point ;  and  where  there  is  no  direct  prohi- 
bition, divorced  persons  may  marry  again.  But  in 
eleven  States,  namely,  Alabama,  Indiana,  Kansas, 
Maine,  Maryland,  Massachusetts,  Missouri,  New 
York,  Pennsylvania,  Vermont,  and  Virginia  there 
are  special  provisions  upon  the  subject  of  re-mar- 
riaoe  ;  and  in  some  of  them  the  future  marital  rio-hts 
of  the  parties  are  lodged  with  the  court  granting  the 


lOO  THE   GEOGRAPHY  OF  MARRIAGE. 

divorce.  In  Alabama,  the  court  directs  in  the  decree 
whether  the  guilty  party  shall  marry  again.  In 
Indiana,  if  the  divorce  has  been  procured  by  publi- 
cation against  a  non-resident  of  the  State,  the  person 
procuring  it  shall  not  marry  again  within  two  years. 
In  Kansas,  neither  party  shall  marry  within  six 
months  after  the  granting  of  the  divorce,  nor  while 
an  a2:)peal  from  the  Judgment  of  divorce  is  pending. 
Violation  of  this  prohibition  constitutes  bigamy.  In 
Maine  the  innocent  party  shall  not  marry  within  two 
years  after  final  decree  without  leave  of  court  ;  but 
the  guilty  party  shall  not  marry  within  two  years, 
nor  afterwards  without  leave  of  court.  In  Maryland, 
the  court  may  decree  that  guilty  j)arty  shall  not  marry 
during  the  life  of  innocent  party,  and  a  violation  of 
the  prohibition  constitutes  bigamy.  In  Massachu- 
setts, an  innocent  party  may  marry  at  once,  but 
the  guilty  party  not  until  after  two  years.  In 
Missouri,  a  guilty  party  is  forbidden  to  marry  for 
five  years,  unless  the  disability  is  removed  by  the 
court.  In  New  York,  a  guilty  party  shall  not 
marry  during  life  of  innocent  party,  unless,  after 
five  years,  and  after  re-marriage  of  innocent  party, 
upon  showing  uniformly  good  conduct  during  that 
period,  the  court  granting  the  divorce  modifies  the 
decree  giving  leave  to  marry.  A  violation  of  this 
rule  renders  the  second  marriage  void.  In  Pennsyl- 
vania, a  guilty  party  cannot  marry  the  person  with 
whom  the  crime  was  committed  until  after  death  of 
innocent  party.     In  Vermont,  a  guilty  party  cannot 


MARRIAGE   OF  DIVORCED  PERSONS.  lOI 

many,  except  the  party  from  whom  the  divorce  was 
obtained,  until  three  years  after  decree,  unless  the 
innocent  party  dies  ^vithin  that  time.  Violation  of 
this  rule  is  punishable  by  imprisonment,  not  less 
than  one  nor  more  than  five  years.  In  Virginia,  the 
court  may  in  its  discretion  restrain  the  guilty  party 
from  marrying  again. 

In  the  midst  of  these  complications,  what  comfort 
is  to  be  derived  by  appealing  to  the  provision  of  the 
United  States  Constitution,  which  declares  that  "  full 
faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  State "  ?  The  position  of  the  guilty  person 
divorced  by  the  law  of  a  State  which  forbids  him 
again  to  marry,  and  who  marries  in  another  State  in 
violation  of  the  Judgment  which  prohibits  him,  can- 
not plead  in  his  defence  the  judgment  which  he  has 
violated,  and  ask  the  court  to  give  to  it  full  faith  and 
credit.  If  the  divorce  was  obtained  in  Maine  in 
favor  of  the  wife  for  the  husband's  guilt,  the  judg- 
ment would  forbid  him  to  marry  without  leave  of 
the  court.  If  the  husband  should  leave  Maine  and 
come  into  New  York  and  marry  in  violation  of  the 
Maine  judgment,  it  would  be  disastrous  for  him  to 
plead  that  judgment  and  ask  the  court  to  give  full 
faith  and  credit  to  its  terms  and  conditions.  If, 
however,  the  divorce  against  him  was  obtained  in 
Pennsylvania,  where  there  is  no  objection  to  his  con- 
tracting a  second  marriage  (provided  he  does  not 
marry  his  paramour),  and  comes  to  New  York  to 


I02  THE   GEOGRAPHY  OF  MARRIAGE. 

contract  the  second  marriage,  be  violates  not  tlie  law^ 
of  Pennsylvania  nor  the  judgment  of  its  court,  but 
transgresses  the  law  of  New  York.  These  illustra- 
tions are  sufficient  to  show  the  dangers  and  perplexi- 
ties growing  out  of  the  lack  of  harmony  existing. 


CHAPTER   XIV. 

WHAT    COlSrSTITUTES    A    VALID    MAEKIAGE  ? 


What  a  delicious  breath  marriage  sends  forth  ; 
The  violet  bed  's  not  sweeter.     Honest  wedlock 
Is  like  a  banqueting  house,  built  in  a  garden, 
On  which  the  Spring's  chaste  flowers  take  delight 
To  cast  their  modest  odors. 

MiDDLETON. 


This  inquiry  as  to  what  constitutes  a  valid  mar- 
riage is  of  the  highest  importance,  as  it  involves, 
oftentimes,  the  most  serious  and  far-reaching  conse- 
quences. In  view  of  its  importance,  it  should  be 
clearly  and  uniformly  settled  and  easily  answered. 
And  yet  the  doubtful  and  uncertain  provisions  of 
law  at  present  existing  in  some  of  the  States  and 
Territories,  upon  the  subject,  render  it  one  of  the 
most  perplexing  and  difficult  problems  in  our  social 
economy.  What  would  be  a  perfectly  good  and 
valid  marriage  if  performed  in  New  York,  might 
be  absolutely  void  if  performed  in  Massachusetts. 
So  that  the  social  status  of  the  family,  and  the 
property  rights  incidental  to  the  married  state,  will 
depend,  not  upon  any  particular  law  of  moral  ethics, 
but  upon  a  question  of  geography. 

Marriao;e  is    an  institution    as    old   as   the   race. 


103 


104  THE    GEOGRAPHY  OF  MARRIAGE. 

having  existed  since  the  creation  of  mankind.  The 
right  of  marriage,  therefore,  is  older  than  the  law, 
and  older  than  the  state,  since  it  existed  before  men 
beo'an  to  form  artificial  rules  and  reo-ulations  for 
their  government  and  mutual  protection.  It  is  an 
inherent  ris-ht  derived  from  that  condition  which 
prescribed  the  existence  of  sex,  whereby  the  race 
embraced  only  men  and  women.  It  is  a '  right 
which  is  not  derived  from  any  local  precept  or 
particular  legislation,  because  it  existed  of  neces- 
sity before  legislators  came  into  being,  and  must 
continue  while  mankind  exists  under  present  condi- 
tions. It  is  not  forbidden  by  the  code  of  morals  or 
religious  creed  of  any  people,  nor  by  divine  revela- 
tion in  the  Scriptures  of  the  Old  and  New  Testa- 
ment. It  is  a  right  inherent  in  man  from  the  very 
nature  of  his  being,  and  cannot  be  conferred  by 
human  laws.  Society  may  prescribe  the  mode  in 
which  it  may  be  celebrated,  and  establish  rules 
whereby  the  e\ddence  of  it  may  be  preserved,  but 
society  cannot  confer  the  right  of  marriage.  Hence 
it  cannot  abolisli  a  right  which  it  cannot  confer.  To 
forl:)id  marriage  would  be  wrong  in  morals.  And  it 
is  a  familiar  maxim  of  government  that  that  which 
is  morally  wrong  can  never  be  politically  right. 

Tliese  observations  are  self-evident.  Tliey  em- 
])ody  a  fundamental  truth  which  one  would  suppose 
would  be  universally  recognized  in  every  intelligent 
comnumity.  Yet,  strange  as  it  may  seem,  courts 
without    express    authority   from    the    Legislature, 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?       105 

assuming  to  extend  tlieir  judicial  functions,  have 
assumed  to  deny  this  right  in  passing  judgment 
upon  the  conduct  of  their  fellow-men,  who,  in  good 
faith,  have  taken  upon  themselves  the  duties  and 
obligations  which  attach  to  the  relation  of  husband 
and  wife,  and  have  presumed  to  unmake  the  most 
sacred  and  solemn  contract  after  it  had  been  con- 
summated with  due  solemnity  in  accordance  with 
religious  observances  and  customs,  because  some 
details  of  no  essential  importance  had  not  been  com- 
plied with  when  the  contract  was  made.  In  the 
absence  of  some  clear  and  positive  provision  of  law, 
where  does  a  court  derive  the  right  to  say  that  a 
contract  of  marriage,  solemnly  and  publicly  made 
by  a  man  and  woman  in  good  faith,  is  no  mar- 
riage ?  Where  does  one  man  get  the  power  to  declare 
that  another  man's  children  are  illegitimate,  and  his 
wife  is  only  a  mistress,  when  there  is  no  statute  de- 
claring the  marriage  void  ?  Yet  this  power  has  been 
assumed,  and  the  right  of  a  man  and  a  woman  to 
marry  themselves  has  been  denied  in  Massachusetts, 
notwithstanding  the  fact  that  the  Legislature  of  that 
State  never  passed  any  law  declaring  that  where 
parties  marry  themselves  the  marriage  shall  be  void. 
The  circumstances  of  this  case  will  be  referred  to 
later. 

AVhat  remains  to  be  said  in  this  chapter  has  no 
application  or  reference  to  Quaker  marriages.  That 
body  of  useful  and  peaceful  citizens  are  everywhere 
accorded  the  right  to  contract  marriage  in  accordance 


106  THE    GEOGRAPHY  OF  MARRIAGE. 

with  their  usages    and   customs,   and  Quaker  mar- 
ria2:es  are  resiarded  as  valid  throug-hout  Christendom. 

With  these  preliminary  observations  which  serve 
to  foreshadow  some  of  the  difficulties  which  beset 
the  inquiry,  we  shall  proceed  to  examine  the  ques- 
tion. In  some  parts  of  the  country  marriage  may  be 
consummated  in  two  ways,  while  in  other  localities 
but  one  mode  is  recognized.  These  are,  first,  where 
23arties  marry  themselves,  and  make  their  own  con 
tract  without  the  aid  or  assistance  of  minister,  priest, 
or  magistrate  standing  by  to  give  assent  and  pro 
nounce  the  union  valid.  The  man  and  the  woman 
if  physically  and  mentally  capable,  may  bind  them 
selves  in  wedlock  and  tie  the  knot  which  makes 
them  man  and  wife.  The  other  mode  necessitates 
the  presence  of  a  minister,  priest,  or  magistrate  to 
solemnize  the  marriage,  who  must  pronounce  the 
bride  and  groom  to  be  husband  and  wife.  In  other 
words,  in  some  States  parties  are  allowed  to  marry 
themselves,  while  in  others  this  right  is  denied,  and 
they  must  be  married  by  a  third  party,  who  shall 
perform  the  ceremony. 

With  regard  to  this  right  of  men  and  women 
to  marry  themselves,  the  States  are  again  divided 
into  tAvo  classes:  first,  those  in  which  the  right  is 
recognized  and  declared  to  exist,  until  taken  away 
expressly  by  the  act  of  the  legislature  ;  second,  those 
States  in  which  it  is  claimed  that  where  the  leg- 
islature prescribes  that  marriage  shall  be  celebrated 
by   a    third    person,    the   right    to   marry    without 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?        lO/ 

a  third  person  is  taken  away  by  implication,  and 
that  it  is  not  necessary  for  the  statute  to  declare 
marriage  by  the  parties  to  be  void. 

This  distinction  should  be  borne  in  mind  to  avoid 
confusion ;  because  in  every  State  and  Territory  ex- 
cepting only  South  Carolina,  provision  is  made  for 
celebrating  marriage  by  a  minister,  priest,  or  magis- 
trate, and  marriage  licenses  are  frequently  required, 
and  in  some  cases  it  is  necessary  to  publish  the  banns. 
But  in  a  large  majority  of  the  States  these  regula- 
tions are  regarded  as  directory  and  not  compulsory, 
and  while  persons  who  do  not  conform  to  them  may 
be  punished,'  yet  their  right  to  marry  themselves  is 
not  taken  away  or  destroyed,  and  such  marriages  will 
be  valid,  unless  the  statute  distinctly  declares  that 
such  marriages  shall  be  void. 

Those  States  in  which  it  is  said  that  the  rig^ht 
of  persons  to  marry  themselves  may  be  taken  away 
by  implication,  and  without  positive  words  in  the 
statute,  are  Maine,  Maryland,  Massachusetts,  North 
Carolina,  and  Tennessee.  In  Connecticut,  Delaware, 
and  Kentucky,  the  right  of  persons  to  marry  them- 
selves is  taken  away  by  express  provisions  of  la\7. 

In  these  eight  States,  therefore,  parties  are  not 
allowed  to  marry  themselves,  but  there  must  be  a 
ceremony  j)erformed  by  a  third  person,  in  order  to 
make  the  contract  valid  in  the  eye  of  the  law.  The 
character  of  this  third  person,  authorized  to  solem- 
nize marriage,  varies  also  in  particular  States.  In 
Maryland,  for  example,  down  to  1886,  no  person  but 


I08  THE   GEOGRAPHY  OF  MARRIAGE. 

an  ordained  minister  of  the  gospel  could  perform 
the  ceremony,  and  this  rule  seems  to  prev^ail  at  the 
pT-esent  time.  In  Massachusetts  a  Justice  of  the 
peace  may  solemnize  marriage  as  well  as  an  ordained 
minister  of  the  gospel,  but  the  minister  must  I'eside  in 
Massachusetts  in  order  to  he  qualified  to  act.  This  is 
true  of  Connecticut,  where  the  law  requires  an  ordain- 
ed or  licensed  clej'gyman  belonging  to  Connecticut. 
The  same  rule  exists  in  North  Carolina,  except 
that  in  that  State  the  law  does  not  expressly  declare 
that  the  minister  must  reside  within  the  State,  but 
there  must  be  at  least  three  witnesses  to  the  cere- 
mony. In  North  Carolina,  therefore,  the  absence  of 
one  witness  might  operate  to  disinherit  children  and 
destroy  their  legitimacy.  In  Tennessee  the  right  to 
solemnize  marriage  is  extended  to  Jewish  rabbis 
having  the  care  of  souls,  justices  of  the  peace, 
judges,  and  chancellors  in  the  State,  as  well  as 
"  regular "  ministers  of  the  gospel,  as  they  are 
called.  What  a  "  regular  "  minister  of  the  gospel 
is,  the  bride  and  groom  must  find  out  at  their  peril. 
Delaware  extends  the  privilege  to  the  mayors  of  the 
cities  of  Wilmington  and  New  Castle,  as  well  as  to 
"  preachers  of  the  gospel  ordained  or  appointed 
according  to  tlie  rules  of  the  church  to  which  they 
belong."  In  Kentucky  judges  of  the  county  court 
and  such  justices  of  the  peace  as  the  county  jndge 
may  authorize,  may  solemnize  marriage,  as  well  as 
ministers  or  priests  of  any  denomination.  But  un- 
less   such  ^minister   or   priest    is   licensed    by   the 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?       lOQ 

courty  court  for  that  purpose,  and  gives  a  bond  to 
tlie  commonwealtli  of  Kentucky  in  the  penal  sum  of 
two  thousand  dollars,  he  is  not  authorized  to  officiate 
at  a  weddino;.  Maine  is  the  only  State  in  the  Union 
in  which  a  woman  is  authorized  to  officiate  at  a  Aved- 
ding  as  celebrant.  There  has  never  been  a  wedding 
without  a  woman,  it  is  true,  but  in  Maine  a  woman 
may  perform  the  ceremony  in  like  manner  as  a  jus- 
tice of  the  peace,  ordained  minister,  or  licensed 
preacher,  provided  she  has  been  commissioned  and 
appointed  by  the  Governor  of  Maine  for  that  purpose. 

There  are  a  large  number  of  States,  however, 
which  recognize  the  right  of  a  man  and  woman  to 
marry  themselves  until  that  right  is  expressly  taken 
away  by  the  legislature,  notwithstanding  the  fact 
that  the  law  declares  that  a  minister,  priest,  or 
magistrate  shall  perform  the  ceremony.  This  is  the 
rule  in  Alabama,  California,  Dakota,  Georgia,  Ida- 
ho, Illinois,  Iowa,  Michigan,  Minnesota,  Mississi2:)pi, 
Missouri,  New  York,  Ohio,  Pennsylvania,  and  South 
Carolina.  In  the  remainder  of  the  States  and  Terri- 
tories the  question  has  not  yet  been  finally  settled. 
The  view  that  the  right  of  individuals  to  marry 
themselves  exists  till  abrogated  by  express  legisla- 
tion, and  cannot  be  taken  away  by  mere  im23lication, 
has  been  adopted  by  the  highest  court  in  the  land, 
and  the  Supreme  Court  of  the  United  States  stands 
committed  to  this  simple  and  righteous  principle. 

Thus  it  appears  that,  while  every  State,  except 
South  Carolina,  has  prescribed  a  particular  mode  in 


no  THE    GEOGRAPHY   OF  MARRIAGE. 

wliicli  individuals  may  marry,  in  a  large  majority  of 
them  a  man  and  a  woman,  without  going  before  a 
minister  or  magistrate,  with  no  previous  public 
notice,  with  no  form  or  ceremony,  civil  or  religious 
and  merely  by  words  of  the  present  tense,  may  con 
tract  matrimony.  In  a  large  geographical  area  cov 
ered  by  the  body  of  States  grouped  above,  marriage, 
so  far  as  the  law  is  concerned,  is  simply  a  civil  con 
tract,  which  requires  nothing  but  the  agreement  of 
the  parties,  with  an  intention  that  that  agreement 
shall  of  itself  constitute  the  marriage.  The  bride 
and  groom  may  express  the  agreement  by  parole, 
they  may  signify  it  by  whatever  ceremony  their 
whim,  or  their  taste,  or  their  religious  belief  may 
dictate.  It  is  the  agreement  itself,  not  the  form  in 
which  it  is  couched,  which  constitutes  the  conti'act. 
In  California,  Dakota,  and  Pennsylvania  the  agree- 
ment may  be  put  in  writing,  signed  by  the  bride  and 
groom,  and  witnessed,  as  a  deed  for  a  piece  of  land 
is  signed  and  witnessed,  and  put  on  record  like  a 
deed.  In  the  State  of  New  York,  however,  it  has 
been  decided  by  the  highest  court  that  "  a  man  and 
a  woman,  without  going  before  a  minister  or  magis- 
trate, \vithout  the  presence  of  any  person  as  a  wit- 
ness, with  no  previous  public  notice  giv^en,  with  no 
form  or  ceremony,  civil  or  religious,  and  with  no 
record  or  written  evidence  of  the  act,  and  merely  by 
words  of  the  present,  may  contract  matrimony." 

Certainly  a  marriage  without  witnesses  or  written 
evidence    is   very   imprudent,    unwise,    and   foolish 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?       Ill 

in  tliis  age  of  the  world  when  illiteracy  is  at  a 
miniranm ;  and  in  view  of  the  fact  that,  after  the 
death  of  one  of  the  parties,  it  may  be  absolntely 
impossible  to  establish  it  by  proof.  Nevertheless, 
the  courts  recoo-nize  the  existence  of  the  rio;ht  as  a 
fundamental  principle. 

The  only  further  observation  in  this  connection  is 
to  point  out  that  the  marriage,  in  order  to  be  valid, 
must  be  a  contract  or  agreement  in  words  of  the 
present  tense.  I  now  take  this  woman  whom  I  hold 
by  the  hand  to  be  my  lawful  wedded  wife.  I  now 
take  this  man  to  be  my  la^\^ul  husband.  These  are 
words  of  the  present,  and  constitute  a  valid  contract 
and  agreement.  It  won't  do  to  say  I  loill  take.  That 
clearly  is  simply  an  engagement  or  betrothal,  since  it 
implies  that,  at  sorne  future  time,  the  individual  will 
take  upon  himself  the  marriage  vow.  But  where 
the  language  is  in  the  present  tense,  I  take,  or  I  now 
take,  the  contract  is  entered  into  and  is  binding, 
provided  it  is  mutual.  Both  must  agree,  since  the 
contract  of  marriage,  like  other  contracts,  is  one 
which  it  requires  two  to  make.  Keeping  in  view  the 
words  of  the  contract,  which  distinguish  marriage 
from  betrothal,  and  being  informed  of  the  State  or 
Territory  where  the  contract  is  made,  one  may 
readily  solve  the  problem  as  to  what  constitutes  a 
valid  marriage. 

This  agreement  must  be  free  and  voluntary.  The 
consent  of  the  parties  is  the  vital  part  of  the 
ceremony.     The  inquiry  which  is  put  to  the  bride 


112  THE   GEOGRAPHY  OF  MARRIAGE. 

and  groom  by  the  celebrant,  while  solemnizing  tlie 
marriage,  is  not  a  mere  form.  When  the  bride  is 
asked  "do  you  take  this  man  to  be  your  wedded 
husband,  to  have  and  to  hold  from  this  day  forward, 
for  better  for  worse,  for  richer,  for  poorer,  in  sickness 
and  in  health,  to  love  and  to  cherish,  till  death  do  you 
part,"  the  response  must  be  voluntary  and  unequiv- 
ocal. An  affirmative  answer  from  each  of  the  con- 
tracting parties  respectively,  is  necessary  to  bind 
them  in  holy  wedlock.  A  negative  answer  from 
either,  makes  an  end  of  the  matter,  in  spite  all  that 
the  celebrant,  or  others  may  do  or  say.  The  plot  of 
many  a  novel  is  made  to  turn  upon  the  critical  mo- 
ment when  the  bride  is  led  to  the  altar,  forced  by 
the  will  or  ambition  of  parents,  or  enmeshed  by  a  web 
of  circumstances  which  seem  to  render  any  means 
of  escape  for  the  unwilling  heroine  impossible.  The 
remedy,  however,  is  involved  in  the  response  which 
the  bride  must  make,  and  which  cannot  be  made  for 
her.  If  there  is  a  refusal  to  enter  into  the  contract, 
all  the  jDlans,  devices,  and  designs  to  which  cunning 
or  ingenuity  may  resort,  will  fail  utterly.  Contrary 
to  all  precedent,  an  American  girl  assumed  the  re- 
sponsibility of  exercising  this  right,  which  belonged 
to  her,  and  determined  to  wed  the  man  of  her  own 
choosing.  She  firmly  declined  at  the  critical  mo- 
ment, in  the  midst  of  the  ceremony,  to  have  her 
parents  choose  a  husband  for  her.  The  parties  re- 
sided in  Michigan.  The  parents  succeeded  in  com- 
pelling their  child   to  accept  the  hand  of   a  man 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?        I13 

whom  tliey  determined  she  should  wed.  She  was 
obliged  from  sheer  necessity  to  engage  herself  to 
him,  and  he  led  her  to  the  altar.  When  the  cer- 
emony was  being  performed,  however,  her  nature 
revolted  at  the  thought  of  becoming  the  wife  of 
one  whom  it  was  impossible  for  her  to  love,  and 
who  never  could  win  her  affections.  Her  woman- 
hood asserted  itself,  and  she  boldly  declared  to 
the  magistrate  that  "if  he  tied  the  knot  forty 
times,  it  would  not  stay  tied."  She  told  him  she 
did  not  like  the  man  and  would  not  live  with 
him.  She  was  directed,  however  to  stand  up,  that 
the  ceremony  might  be  proceeded  with.  This  she  was 
obliged  to  do,  but  when  she  was  asked  "  do  you  take 
this  man  to  be  your  wedded  husband  ? "  she  declared 
bluntly,  "  No,  I  won't !  "  And  the  only  response  to 
the  inquiries  which  required  an  affirmative  reply  w^as 
emphatically  in  the  negative.  The  celebrant  how- 
ever, proceeded  with  the  ceremony,  and  nothing 
daunted  at  the  rebellion  he  had  witnessed  on  the 
part  of  one  of  the  non-contracting  party,  nevertheless 
pronounced  the  couple  husband  and  wife.  The 
bride  escaped  and  ran  away  on  the  following  day. 
The  matter  came  before  the  courts,  and  the  lower 
tribunals  held  that,  notwithstanding  there  had  been 
no  mutual  vows,  it  was  nevertheless  a  legal  marriage. 
This  view,  however,  was  rejected  by  the  highest  court 
in  Michigan  upon  the  ground  that  marriage  is  a 
contract  which  must  of  necessity  be  mutual,  and  in 
which  both  parties  must  concur  at  the  same  instant, 


114  ^^^   GEOGRAPHY  OF  MARRIAGE, 

and  in  the  absence  of  sucli  consent,  and  the  woman 
having  positively  refused  to  contract,  there  was  no 
marriao;e. 

It  is  fortunate  that  this  novel  circumstance  hap- 
pened in  Michigan  and  not  in  Arkansas.  The  differ- 
ence in  geography  becomes  important  when  the  law 
of  Arkansas  upon  the  subject  of  forced  marriages 
is  considered.  It  declares  that  whoever  "  shall 
take  unlawfully,  and  against  her  will,  any  woman, 
and  by  force,  duress,  or  menace  compel  her  to  marry 
him,  or  to  marry  any  other  person,  shall  suffer 
death." 

The  circumstances  of  the  Massachusetts  case  below 
referred  to  will  serve  to  illustrate  the  results  of  courts 
trying  to  make  law  for  the  legislature,  and  assuming, 
by  an  arbitrary  exercise  of  opinion,  to  unmake  and 
impair  a  contract  more  sacred  and  important  in  its 
'Consequences  than  any  which  it  is  within  the  power 
of  man  to  make,  thereby  annulling,  with  a  stroke 
of  the  pen,  lights  dearer  than  life  itself,  whereby 
children  are  deprived  of  their  birthright,  and  the 
sanctity  and  security  of  the  domestic  relations  assailed 
and  destroyed.  The  facts  of  this  remarkable  case 
are  as  follows. 

A  clergyman  of  the  denomination  known  as  "  Sec- 
ond Adventists,"  while  preaching  at  Worcester, 
Massachusetts,  became  engaged  to  a  lady  in  the 
congregation.  Having  learned  that  it  was  necessary 
to  file  a  notice  of  his  intention  to  wed,  in  the  office 
of  the  city  clerk  of  Worcester  and  procure  from  him 


WHAT  CONSTITUTES  A    VALID  MARRIAGE  ?       I15 

a  marriage  license,  the  clergyman  did  so,  complying 
with  every  formality  in  this  respect.  Afterwards 
on  the  morning  of  the  12th  of  July,  1879,  the  wed 
ding  took  place  at  Advent  Chapel,  in  AVorcester 
under  somewhat  novel  circumstances.  The  bride 
groom  occupied  the  'pulpit  that  morning.  The  con 
gregation  assembled  as  usual,  and  the  minister  gave 
out  the  text  and  delivered  an  eloquent  sermon  on 
repentance.  He  then  read  the  first  five  verses  of  the 
twentieth  chapter  of  Matthew,  and  having  finished, 
descended  from  the  pulpit  into  the  aisle,  the  congre- 
gation watching  with  intense  interest.  The  bride 
then  arose,  and  advancing  from  her  pew,  walked  up 
the  aisle,  reading  from  the  twentieth  chapter  of 
Matthew,  commencing  where  the  bridegroom  had 
finished,  and  continued  from  the  sixth  to  the  tenth 
verse.  The  bride  and  groom  then  Joined  hands,  and 
■the  latter,  raising  his  eyes  reverently,  said,  with 
great  dignity  :  "  In  the  presence  of  God  and  of  these 
witnesses,  I  now  take  this  woman  whom  I  hold  by 
the  right  hand  to  be  my  lawful  wedded  wife,  to  love 
and  to  cherish  till  the  coming  of  our  Lord  Jesus 
Christ,  or  till  death  do  us  part."  AVhereupon  the 
bride,  in  clear,  silvery  tones,  responded  :  "  And  I 
now  take  this  man  to  be  my  lawfully  wedded  hus- 
band, to  love,  reverence,  and  obey  him  until  the 
Lord  himself  shall  descend  from  heaven  with  a 
shout,  and  the  voice  of  the  archangel,  and  with  the 
trumpet  of  God,  or  till  death  shall  us  sever."  The 
pair  then  knelt  before  the  congregation,   and  the 


Il6  THE   GEOGRAPHY  OF  MARRIAGE. 

groom  offered  a  prayer,  and  thus  ended  the  unusual 
ceremony. 

The  bride  and  groom  afterwards  filled  up  the 
marriage  certificate,  upon  which  was  endorsed  a 
statement  signed  by  both,  that  they  had  been  mar- 
ried to  each  other  by  mutual  public  vows. 

The  happy  couple  continued  thereafter  to  live 
together  as  husband  and  wife,  minding  their  own 
affairs,  and  little  dreaming  that  any  individual  would 
ever  assume  to  declare  that  they  were  not  married, 
and  were  not  man  and  wife.  After  a  time,  however, 
the  matter  was  brought  before  the  courts,  and  the 
question  as  to  the  validity  of  the  marriage  was  in- 
volved. Away  back  in  1646  there  was  a  law  passed 
in  Massachusetts  Bay  forbidding  persons  to  Join 
themselves  in  marriage  but  before  some  magistrate 
or  person  authorized  to  solemnize  marriage.  The 
law,  however,  while  it  forbade  persons  to  many 
themselves,  did  not  declare  that  if  persons  should 
assume  to  do  so  the  marriage  should  be  void.  No 
such  provision  was  contained  in  any  statute  of  the 
State,  from  colonial  times  down  to  the  time  of  the 
novel  marriage  of  the  Advent  clergyman. 

Notwithstanding  this  fact,  the  highest  court  in 
Massachusetts  decided  that  the  right  of  pei'sons  to 
marry  tliemselves,  though  not  expressly  abolislied  by 
the  legislature,  was  taken  away  by  necessary  implica- 
tion, and  upon  this  narrow  tlieory,  that  a  right 
which  tlie  legislature  could  not  confer  was  destroyed 
by   "  inference,"  the  court  was   satisfied  to  base  a 


WHAT  CONSTITUTES  A    VALID  MARRIAGE?       11/ 

judgment  wliicli  struck  a  blow  at  the  conjugal 
happiness  of  others,  which  operated  to  destroy  rights 
which  it  was  not  in  the  power  of  the  court  to 
bestow.  If  the  clergyman  had  been  a  Quaker,  the 
court  would  not  have  dared  to  ruthlessly  destroy 
his  domestic  i-elations,  but  it  chanced  that  he  be- 
lieved in  the  second  advent  of  the  Messiah. 

It  has  been  shown  that  marriao^e  is  a  contract 
which  can  be  made  either  by  the  parties  themselves, 
or  for  the  parties  by  a  clergyman  or  magistrate. 
But  it  has  been  universally  conceded  that  there 
must  be  a  contract  of  marriage  existing  in  order  to 
make  the  parties  husband  and  wife.  Merely  living 
together  in  the  absence  of  any  such  agreement 
renders  the  union  meretricious,  not  in  any  sense 
matrimonial.  A  mistress  or  concubine  up  to  the 
present  time  has  never  been  accorded  the  rights  and 
privileges  of  a  wife,  and  it  has  come  to  be  a  maxim 
that  mere  concubinao-e  can  never  drift  into  matri- 
mony,  nor  become  wedlock  by  lapse  of  time.  This 
rule,  however,  has  been  reversed  in  Arizona,  by 
a  law  passed  February  28,  1887,  whereby  it  is 
declared  that  parties  who  have  lived  together  as 
husband  and  wife  and  continued  to  do  so  for  a  year, 
shall  be  considered  as  having  been  legally  married ; 
and  if  either  die  within  the  year  the  same  result 
follows,  and  the  children  are  declared  legitimate. 
Within  the  geographical  limits  of  Arizona,*  therefore, 
if  nowhere  else  on  the  globe,  it  is  possible  for  a  man 
and  woman  to   become  husband  and  wife  without 


Il8  THE    GEOGRAPHY  OF  MARRIAGE. 

getting  married  at  all.  Another  strange  phase  of  this 
very  complex  and  intricate  subject :  by  lapse  of  time 
concubinage  becomes  matrimony,  and  the  union 
meretricious  in  its  inception  becomes  legal.  What 
a  wonderful  variety  of  matrimonial  complications  is 
exhibited  within  the  territory  of  the  United  States, 
in  a  community  owning  allegiance  to  one  flag  and 
dwelling  together  as  one  nation  !  In  one  part  of  the 
country  the  law  is  so  framed  that  the  parties,  after 
trying  to  get  married,  and  after  taking  upon  them- 
selves the  most  solemn  vows,  were  barred  of  their 
marital  rights  because  a  justice  of  the  peace  was  not 
present  to  go  over  the  form ;  while  in  another  locality 
the  parties  find  themselves  husband  and  wife  with- 
out making  any  contract  at  all,  and  without  any 
form  or  ceremony  of  any  kind.  Uncertainty,  mystery, 
complications,  perplexities.  x\nd  yet,  who  will  con- 
demn the  people  of  Arizona  for  protecting  the  rights 
and  interests  of  the  innocent  children  born  within 
the  territory  under  circumstances  ^vhich  left  them 
without  family  ties  or  associations ;  deprived  of  the 
rights  of  inheritance,  for  causes  which  it  would  be 
impossible  for  them  to  alter  or  control. 


CHAPTER  XV. 


THE   MARRIAGE    LICE2fSE. 


"  Oh  how  many  torments  lie  in  the  small  circle  of  a  wedding-ring." 

COLLEY  ClBBER. 


Iisr  some  parts  of  tlie  country  more  details  and 
j)reliminaries  are  required  than  in  others,  as  a  con- 
dition preparatory  to  embarking  upon  the  conjugal 
sea.  In  many  instances,  however,  these  preliminaries 
though  requisite  are  not  absolutely  essential,  or 
necessary,  in  order  to  secure  the  validity  of  the 
marriage.  There  seems  to  be  an  entire  lack  of 
unity,  so  far  as  these  requirements  are  concerned  ; 
but,  since  they  must  be  complied  \\'ith  in  many 
instances  under  penalty,  such  compliance  becomes  a 
matter  of  serious  importance,  so  far  as  the  licensing 
officials  and  celebrant  are  concerned.  The  parties 
about  to  wed,  the  officer  whose  duty  it  is  to  issue 
the  marriage  license,  and  the  minister  or  magistrate 
who  shall  officiate  at  the  nuptials,  are  all  interested 
to  avoid  error,  when  error  may  mean  fine  or  impris- 
onment. Clergymen  and  officials  also  take  a  Just 
pride  in  keeping  within  the  law,  not  only  to  avoid 
liability  and   complications  which   may  arise  from 

119 


I20  THE   GEOGRAPHY  OF  MARRIAGE. 

ignorance  or  failure  to  observe  such  formalities  as 
may  be  prescribed,  but  as  matter  of  professional 
punctilio  and  correct  methods.  Knowledge  con- 
cerning this  branch  of  the  subject  may  be  useful, 
also,  in  giving  a  clue  to  v^diere  this  kind  of  informa- 
tion may  readily  be  obtained  in  various  parts  of  the 
country.  It  can  be  resorted  to  in  tracing  identity 
and  relationships  among  distant  kindred,  and  may 
become  useful  in  many  ways  to  ascertain  and  fix 
rights  of  inheritance  after  the  lapse  of  years,  when 
other  data  have  been  lost  or  forgotten.  Full  names  of 
bride  and  groom  and  of  their  parents,  and  often- 
times the  maiden  names  of  the  mothers  of  both  are 
required  to  be  filed  with  the  official,  when  the  license 
is  granted. 

A  marriage  license  is  required  in  every  State  and 
Territory  throughout  the  United  States,  save  only  in 
Michigan,  Montana,  New  Jersey,  New  York,  New  Mex- 
ico, South  Carolina,  and  Wisconsin.  In  Delaware  and 
Ohio,  however,  if  the  banns  have  been  duly  published, 
it  will  not  be  necessary  to  procure  a  license,  as  the 
public  notice  given  out  in  church  on  Sunday,  accord- 
ing to  the  old  English  custom,  is  deemed  sufficient  to 
guard  against  unlawful  or  forbidden  marriages.  In 
some  parts  of  New  England — namely,  Maine,  Massa- 
chusetts, New  Hampshire,  Kliode  Island,  and  Ver- 
mont, the  proper  document  is  styled  a  certificate, 
and  is  issued  by  the  town  clerk  or  registrar,  upon 
aj^plication  of  the  parties  about  to  wed,  or  upon  their 
filing  with  such  officer  a  notice  of  intention  to  wed. 


THE  MARRIAGE  LICENSE.  121 

The  officer  charged  with  the  duty  of  issuing  the 
maiTiao:e  license  or  certificate  assumes  various  titles 
in  different  parts  of  the  country,  depending  upon  the 
locality;  the  privilege  of  officially  sanctioning  the 
wedding  being  enjoyed  by  the  county  recorder, 
judge  of  probate  court,  clerk  of  county  court, 
county  clerk,  registrar  or  town  clerk,  clerk  of  the 
peace,  county  judge,  ordinary  of  the  county,  clerk 
of  the  circuit  court,  clerk  of  the  district  court, 
registrar  of  deeds,  clerk  of  orphans'  court,  and  county 
auditor,  as  the  geography  of  the  case  may  demand. 
The  county  recorder  issues  the  license  in  Arizona, 
Idaho,  and  Missouri.  In  Idaho  it  is  the  recorder  of 
the  county  where  the  wedding  is  to  take  place.  In 
St.  Louis,  however,  the  license  is  issued  by  the  re- 
corder of  the  city  of  St.  Louis. 

The  judge  of  the  probate  court  is  the  same  officer, 
styled  the  clerk  of  the  orphans'  court  in  Pennsyl- 
vania, and  in  New  York  the  surrogate.  In  Ala- 
bama, Kansas,  Nebraska,  and  Ohio  the  license  is 
issued  by  the  judge  of  the  probate  court.  In  Ohio, 
if  banns  are  published,  a  license  is  not  necessary. 
In  Alabama  and  Ohio  application  should  be  made 
to  the  judge  of  the  county  where  the  bride  resides, 
while  in  Nebraska  the  judge  of  the  county  where 
the  wedding  is  to  take  place  is  the  proper  officer. 
In  Ohio,  if  the  judge  of  probate  is  the  pros- 
pective groom,  he  must  procure  his  license  from  the 
Court  of  Common  Pleas.  In  Pennsylvania  the 
license    is    issued    by   the    clerk    of    the    orphans' 


122  THE    GEOGRAPHY  OF  MARRIAGE. 

court,  wliere  the  wedding  is  to  take  place  ; 
while  in  Georgia  the  proper  officer  to  issue  the 
license  is  the  ordinary  of  the  county  where  the 
bride  usually  resides.  In  Delaware  the  candidates 
for  matrimony  must  get  the  license  from  the  clerk 
of  the  peace,  unless  they  choose  to  publish  the  banns, 
in  which  case  no  license  is  necessary.  In  Minnesota 
the  clerk  of  the  district  court  of  the  county  where 
the  bride  resides  or  is  to  be  married  ;  in  North 
Carolina  the  registrar  of  deeds  of  the  county  where 
the  wedding  is  to  be  ;  in  Washington  Territory  the 
county  auditor ;  in  Florida  the  county  Judge ;  and  in 
Arkansas  the  clerk  of  the  county  court,  are  the 
proper  licensing  officers  respectively.  In  Iowa,  In- 
diana, Louisiana,  Maryland,  and  Mississippi  the 
clerk  of  the  circuit  court  is  the  proper  officer — in 
Iowa  and  Maryland  in  the  county  where  the  wed- 
ding is  to  take  place ;  in  Indiana  and  Mississippi  in 
the  county  where  the  bride  usually  resides.  In  the 
parish  of  Orleans,  Louisiana,  the  Board  of  Health 
is  designated  to  issue  the  license,  and  the  clerk  of 
the  circuit  court  elsewhere  in  the  State.  The 
county  clerk  is  the  proper  officer  in  California, 
Colorado,  Dakota,  Illinois,  Kentucky,  Nevada,  Ore- 
gon, Tennessee,  Virginia,  Texas,  West  Virginia,  and 
Wyoming — in  California,  Dakota,  Illinois,  and  Wyo- 
ming in  the  county  where  the  bride  usually  resides  ; 
in  the  otlier  States  in  the  county  where  the  wedding 
is  to  take  place,  except  that  in  Nevada  it  may  be 
issued  in  the  county  where  either  the  bride  or  groom 


THE  MARRIAGE  LICENSE.  1 23 

resides,  and  in  Nevada,  if  both  are  non-residents, 
then  the  license  may  be  issued  by  any  county  clerk  ; 
and  in  the  County  of  Multnomah,  Oregon,  it  should 
be  issued  by  the  clerk  of  the  county  court,  and  by 
the  county  clerk  elsewhere  in  the  State.  In  Con- 
necticut, Massachusetts,  New  Hampshire,  Rhode  Is- 
land, and  Vermont  notice  of  intention  to  marry 
must  be  issued  with  the  town  clerk,  or  registrar, 
who  issues  a  certificate  to  that  effect.  In  Massachu- 
setts it  should  be  in  the  city  or  tow^n  where  parties 
propose  to  wed ;  in  the  other  States  named,  in  the 
city  or  town  where  the  parties  or  one  of  them  re- 
side. The  penalties  for  failure  to  return,  file,  or  re- 
cord the  marriage  certificates,  or  to  officiate  without 
a  marriage  license,  or  contrary  to  law,  will  now  be 
considered. 


CHAPTEE  XVI. 

PAINS   AND   PENALTIES LIABILITY   OF  CELEBEANT  AND 

LICENSING     OFFICIAL. 


"  Law  has  been  called  a  bottomless  pit,  not  so  much  because  of  its  depth, 
as  that  its  windings  are  so  obscure  nobody  can  see  the  end." — MORRIS. 


It  has  been  sliown  in  what  States  marriage  licenses 
are  required.  It  has  been  observed  also  that  the 
requirements  of  law  with  respect  to  these  prelimina- 
ries must  be  complied  with,  in  many  instances  under 
penalty.  What  clergymen  and  officials  desire  chiefly 
to  know,  and  the  matter  which  deeply  concerns 
them  is,  under  what  circumstances  these  penalties 
may  be  incurred,  and  the  nature  and  extent  of  the 
liability  involved  thereby.  When  a  license  has 
been  issued  authorizing  a  couple  to  be  joined  in 
marriage,  it  must  be  returned  in  order  to  be  filed, 
indexed,  and  recorded  with  the  proper  officer.  The 
law  usually  prescribes  and  limits  the  time  within 
which  this  must  be  done.  In  some  localities  the 
time  allowed  is  ten  days,  in  others  thirty  days,  in 
others  three  months.  A  fine  or  forfeiture  usually 
attaches  in  case  of  a  failure  to  comply  with  this  pro- 
vision as  to  returning  the  license  when  a  person  under- 
takes to  solemnize  a  marriai^e  in  those  States  where 

124 


PAINS  AND   PENALTIES.  12$ 

the  license  is  required.  An  attempt  to  officiate 
where  the  parties  have  no  license  is  likewise  pun- 
ishable by  fine  or  imprisonment,  or  both.  Where  a 
person  who  is  not  authorized  to  celebrate  marriage 
assumes  to  do  so,  he  may  in  some  localities  be  pun- 
ished. AVhere  the  celebrant  joins  persons  in  wed- 
lock, when  he  knows  they  are  under  the  age  of 
consent,  or  are  forbidden  by  the  laws  of  the  State 
to  marry,  such  an  act  in  some  parts  of  the  country 
constitutes  a  crime.  In  a  few  States  the  clergyman 
or  minister  must  file  with  the  proper  officer  his  cre- 
dentials and  license  showing  his  official  or  ministerial 
character,  as  in  Arkansas,  Minnesota,  Nevada,  Ohio, 
and  Wisconsin ;  and  in  Kentucky,  Virginia,  and 
West  Virginia  he  is  required  also  to  file  a  bond  be- 
fore he  is  qualified  to  officiate  at  the  altar.  For 
failure  to  observe  these  requirements,  also,  he  may 
be  fined  or  imprisoned ;  making  a  false  return  with 
regard  to  any  marriage  celebrated  by  an  official  will, 
in  some  localities,  likewise  subject  the  celebrant  to 
severe  penalties. 

In  those  States  also  in  which  no  marria2:e  license 
is  required,  the  celebrant  becomes  liable  if  he  offici- 
ates at  a  wedding  where  he  knows  the  parties  are 
within  the  age  of  legal  consent,  or  is  cognizant  of  any 
impediment  which  would  render  the  marriage  unlaw- 
ful, or  if  he  should  fail  to  file  a  certificate  of  his 
official  acts  with  the  proper  officer.  The  licensing 
official  also,  who  issues  a  license  to  persons  who  are 
not  entitled  to  it  under   the  law,  may  be  fined  or 


126  THE    GEOGRAPHY   OF  MARRIAGE. 

imprisoned  or  both,  according  to  the  locality  in  which 
the  error  is  made.  He  must  be  doubly  careful  in 
case  the  applicants  are  minors,  to  secure  the  consent 
of  parents  or  guardians,  and  his  failure  to  do  so  may 
subject  him  to  severe  penalties.  His  neglect  to 
properly  file,  index,  or  record  a  certificate  returned  to 
him  by  the  celebrant,  may  likewise  cause  him  to 
suffer.  The  laws  of  the  various  States  are  not  at  all 
in  harmony,  either  as  to  when  and  under  what 
circumstances  liability  will  l^e  incurred,  nor  as  to  the 
severity  of  the  punishment.  Care  has  been  taken, 
however,  to  state  the  law  of  each  particular  State, 
and  to  arrange  the  States  alphabetically  for  easy 
reference  in  a  subsequent  chapter.  The  present 
purj)ose  is  to  indicate  the  importance  of  this  branch 
of  the  subject  and  point  out  some  of  the  liabilities 
prescribed. 

The  most  severe  penalties  for  solemnizing  a  mar- 
riage without  a  license,  will  be  incurred  in  Alabama, 
Florida,  Georgia,  Kansas,  Kentucky,  and  Louisiana. 
In  either  of  these  States,  the  celebrant  who  fails  to 
comply  with  the  law  when  so  officiating,  may  be  fined 
in  a  sum  not  exceeding  one  thousand  dollars.  For 
marrying  a  couple  without  a  license  in  Georgia 
in  case  the  banns  have  not  been  published,  the  cele- 
brant shall  forfeit  five  hundred  dollars,  or  he  may  be 
convicted  of  a  misdemeanor  and  punished  by  a  fine 
not  exceeding  one  thousand  dollars,  or  imprisoned 
not  exceeding  six  months,  or  sentenced  to  work  in  the 
chain  gang  not  exceeding  twelve  months,  or  any  one 


FAIiVS  AND   PENALTIES.  12/ 

or  more  of  these  punishments.  In  Alabama  the 
celebrant  Avill  not  escape  the  meshes  of  the  law  by 
going  into  another  State,  in  order  to  many  two  citi- 
zens of  Alabama,  who  have  no  marriao;e  license.  The 
statute  specifically  declares  that  the  punishment  may 
be  incurred  in  case  the  parties  go  out  of  the  State  in 
order  to  evade  the  law  of  Alabama,  requiring  a 
license.  In  Kansas,  if  the  bride  and  groom  are  first 
cousins  and  the  celebrant  knows  it,  and  performs  the 
ceremony,  he  may  be  fined  not  exceeding  one 
thousand  dollars.  Where  he  knows  the  marriage  is 
otherwise  criminal  or  bigamous,  or  that  the  parties 
are  under  the  age  of  consent,  and  solemnizes  it,  he  may 
on  conviction  be  imprisoned  not  exceeding  one  year 
or  fined  not  less  than  five  hundred  dollars,  or  both. 
In  Kentucky  the  celebrant  who  officiates  at  a  wed- 
ding, where  no  license  has  been  issued  to  the  parties, 
may  be  fined  as  above  stated,  or  imprisoned  not  less 
than  one  month  nor  more  than  one  year,  or  both.  In 
Louisiana  a  fine  not  exceedino;  one  thousand  dollars 
may  be  incurred  for  failure  to  fill  out  and  return  the 
act  of  celebration  executed  in  duplicate  within  thirty 
days  after  the  w^edding.  In  Pennsylvania  if  the 
celebrant  shall  make  a  false  return  with  respect 
to  any  marriage  performed  by  him,  he  may  be  fined 
not  exceeding  one  thousand  dollars.  Persons  may 
marry  themselves  in  Pennsylvania,  but  they  must 
have  a  license  for  that  purpose,  just  as  if  they  were 
to  be  married  by  a  minister  or  magistrate.  In  the 
former  case  it  must  be  properly  witnessed  ;  but  a  cele- 


128  THE   GEOGRAPHY  OF  MARRIAGE. 

brant  who  performs  the  ceremony  or  a  witness  who 
attests  a  marriage  where  no  license  has  been  issued, 
forfeits  one  hundred  dollars  ;  for  failure  to  return  the 
certificate  within  thirty  days,  he  incurs  a  fine  of  fifty 
dollars.  If  the  celebrant  officiates  at  a  wedding 
where  either  the  bride  or  groom,  or  both,  are  intoxi- 
cated, he  is  guilty  of  a  misdemeanor,  and  may  be 
fined  fifty  dollars  and  imprisoned  not  exceeding  sixty 
days. 

In  Connecticut,  Indiana,  Iowa,  Maryland,  Minne- 
sota, Missouri,  Nebraska,  Nevada,  Oregon,  South 
Carolina,  Tennessee,  West  Virginia,  and  Wyoming,  a 
celebrant  solemnizing  marriage  contrary  to  law,  or 
knowing  he  has  no  legal  right  to  do  so,  may  be  fined 
not  exceeding  five  hundred  dollars.  In  Nebraska 
the  penalty  is  incurred  also  for  failure  to  make  and 
record  the  return  within  three  months  to  the  pro- 
bate judge,  or  for  making  a  false  return;  the  pun- 
ishment may  be  also  in  the  alternative,  imprisonment 
not  exceeding  one  year.  In  Oregon  the  certificate 
must  be  returned  by  the  celebrant  to  the  county 
clerk  within  one  month,  and  for  failure  to  do  so  the 
fine  is  fifty  dollars  for  every  five  days'  delay.  The 
penalty  in  South  Carolina,  where  no  license  is  re- 
quired, is  incurred  by  a  celebrant  who  officiates  at  a 
wedding  of  a  white  and  colored  person,  made  crim- 
inal in  that  State.  In  Missouri,  if  the  marriage  is 
performed  without  a  license,  the  celebrant  is  guilty 
of  a  misdemeanor,  and  may  be  fined  not  exceeding 
five   hundred  dollars,  and    becomes   liable  also,  in 


PAINS  AND  PENALTIES.  I  29 

case  either  the  bride  or  groom  is  a  minor,  to  a  suit 
for  damages,  wliicli  may  be  brought  against  him  by 
the  parent  or  guardian ;  but  the  damages  in  such  an 
action  shall  not  exceed  five  hundred  dollars.  Even 
where  a  marriage  license  has  been  procured,  if  either 
party  is  a  minor,  the  celebrant  will  nevertheless  be 
liable  if  he  solemnizes  the  marriage  without  the  con- 
sent of  the  parents,  and  may  be  sued  for  three  hun- 
dred dollars'  damages,  and  may  also  be  indicted  for 
a  misdemeanor,  and  on  conviction  imprisoned  not 
exceeding  six  months  nor  less  than  one  month.  In 
Tennessee  it  would  seem  that  the  clerk  of  the  county 
court,  who  issues  the  license,  and  not  the  celebrant, 
incurs  the  penalty  if  the  parties  are  not  capable  in 
law  of  entering  upon  the  marriage  contract.  In 
West  Virginia,  if  the  celebrant  performs  the  cere- 
mony without  a  license  or  lawful  authority,  he  be- 
comes liable  to  a  fine  not  exceeding  five  hundred 
dollars,  or  imprisonment  not  exceeding  one  year,  or 
both.  For  performing  the  ceremony  between  a  white 
and  colored  person,  the  fine  shall  not  exceed  two 
hundred  dollars.  In  Iowa,  not  only  the  celebrant, 
but  all  parties  to  the  marriage,  or  aiding  and  abet- 
ting, where  no  license  has  been  obtained,  may  be 
fimed  not  exceeding  five  hundred  dollars,  or  impris- 
oned not  more  than  one  year.  In  Wyoming  the 
fine  is  incurred  by  the  celebrant  also  for  failure 
to  return  the  marriage  certificate  to  the  county  clerk 
within  three  months.  In  Virginia  and  West  Virginia 
the  celebrant  must  be  a  clergyman,  who  must  file  a 


130  THE   GEOGRAPHY  OF  MARRIAGE. 

bond  in  the  penal  sum  of  fifteen  hundred  dollars, 
and  for  failure  to  return  the  certificate  to  the  clerk 
of  the  court  whence  it  issues,  the  celebrant  forfeits 
his  bond.  In  Nevada  if  the  celebrant  marries  a 
couple  without  a  license,  or  knowing  of  any  impedi- 
ment to  the  marriage,  he  renders  himself  liable,  and 
may  be  fined  not  exceeding  five  hundred  dollars,  or 
imprisoned  not  exceeding  six  mouths,  or  both.  In 
Washington  Territory,  where  the  celebrant  officiates  at 
a  marriage  which  is  contrary  to  law,  or  where  he  has 
no  legal  right  to  officiate,  he  may  be  fined  not  more 
than  five  hundred  nor  less  than  one  hundred  dollars. 
In  Colorado,  for  solemnizing  a  marriage  without  a 
license,  or  knowing  that  either  party  is  incompetent 
to  marry,  he  is  liable  to  a  fine  of  not  less  than  fifty 
nor  more  than  two  hundred  dollars  ;  and  for  failure 
to  transmit  the  marriage  certificate  within  three 
months  to  the  county  clerk  where  the  marriage  took 
place,  he  forfeits  one  hundred  dollars.  In  Arkansas 
every  minister  or  priest,  in  order  to  become  qualified 
to  officiate  at  a  wedding,  must  file  and  record  with 
some  clerk  and  recorder  in  the  State  his  license  or 
credentials  of  his  clerical  character,  and  should  he 
solemnize  a  marriage  without  first  doing  so,  he  is 
guilty  of  a  misdemeanor,  and  liable  to  a  fine  of  n(5t 
less  than  one  hundred  dollars.  In  many  States,  if 
the  celebrant  fails  to  return  the  license  or  certificate 
to  the  proper  officer  within  the  proper  time,  he  will 
forfeit  as  a  penalty  one  Inindred  dollars.  This  is 
the  rule  in  Arizona,  Illinois,  and  in  Arkansas.     In 


PAINS  AND  PENALTIES.  I31 

Idaho,  Minnesota,  and  Wisconsin  the  fine  must  not 
exceed  one  hundred  dollars. 

In  New  Hampshire,  if  the  celebrant  officiates  with 
or  without  a  license,  ^v'hen  he  has  no  authority,  he 
may  be  fined  not  exceeding  three  hundred  dollars, 
but  if  he  is  qualified  to  perform  the  ceremony,  and 
acts  without  a  license,  he  forfeits  sixty  dollars  for 
each  offense ;  and  for  neglect  to  perform  any  duty 
required  of  him,  the  fine  shall  not  exceed  one  hundred 
dollars.  In  Vermont  the  celebrant  forfeits  ten  dollars 
for  acting  without  a  certificate,  or  for  failure  to  return 
the  certificate  within  ten  days ;  but  for  officiating 
when  he  has  no  right  or  authority  to  do  so  he  may 
be  fined  not  less  than  one  hundred  dollars,  or  im- 
prisoned not  less  than  six  months.  The  certificate 
issued  by  the  town  clerk,  howev^er,  when  acted  upon 
by  the  celebrant,  relieves  him  from  responsibility  as 
to  the  correctness  of  its  statements.  In  Delaware 
the  celebrant  must  make  a  return  of  all  certificates 
every  three  months,  and  for  failure  to  do  so  forfeits 
twenty  dollars.  For  solemnizing  marriage  without 
authority,  the  celebrant  is  subject  to  a  fine  of  five 
hundred  dollars ;  and  for  knowingly  marrying  minors 
without  parents'  consent,  he  may  be  sued  for  damages 
by  the  party  aggrieved. 

In  Mississippi  the  celebrant  must  go  to  jail  if  he 
marries  a  couple  without  a  license,  since  no  fine  is 
prescribed ;  and  the  imprisonment  shall  not  be  less 
than  one  nor  more  than  six  months.  And  if  he  goes 
out  of  the  State  to  officiate  without  a  license,  the 


132  THE    GEOGRAPHY     OF  MARRIAGE. 

law  declares  he  is  guilty  in  tlie  same  manner  as  if  he 
had  acted  in  Mississippi. 

In  New  York  no  marriage  license  i^  required,  but 
if  the  celebrant  shall  officiate  at  a  wedding  where  he 
knows  that  either  of  the  parties  is  within  the  age 
of  legal  consent,  or  an  idiot  or  a  lunatic ;  or  to  which 
within  his  knowledge  any  legal  impediment  exists, 
he  shall  be  deemed  guilty  of  a  misdemeanor,  and 
may  be  fined  or  imprisoned,  or  both,  in  the  discretion 
of  the  court.  The  punishment  for  a  misdemeanor,  in 
the  absence  of  a  specific  penalty,  is  imprisonment  in 
a  penitentiary  or  county  jail  for  not  more  than  one 
year,  or  by  fine  not  exceeding  one  thousand  dollars. 

The  licensing  official,  for  any  violation  of  the 
duties  incumbent  upon  him,  incurs  similar  liability 
to  that  imposed  upon  the  celebrant  for  a  neglect  or 
violation  of  duty  in  the  States  referred  to  respec- 
tively. It  is  frequently  incumbent  upon  him  to 
examine  all  applicants  under  oath  to  ascertain  all 
the  facts  as  to  age,  residence,  parentage,  and  place  of 
birth.  He  must  be  exceedingly  careful  in  case  of 
minors,  and  his  failure  to  secure  the  consent  of 
parents  is  often  a  very  serious  matter.  It  is  his  duty 
to  see  that  no  man-iage  licenses  are  issued  except  to 
parties  who  are  lawfully  entitled  to  receive  them; 
and  he  must  exercise  the  liighest  degree  of  diligence 
in  promptly  filing,  recording,  or  indexing  all  certifi- 
cates returned  l>y  tlie  celebrant.  In  the  Southern 
States,  where  white  persons  are  forbidden  to  mai'ry 
witl]  persons  of  color,  great  care  must  be  exercised 


PAINS  AND  PENALTIES.  1 33 

to  avoid  liability.  In  Georgia,  if  the  licensing  official 
neglects  to  make  inquiry  concerning  tlie  facts,  where 
application  is  made  to  him,  he  ma}^  incur  a  fine  of 
five  hundred  dollars.  In  Indiana,  if  the  license  is 
issued  contrary  to  law,  the  official  may  be  fined  in 
any  sum  the  Jury  may  deem  right,  so  that  the 
severity  of  the  punishment  rests  wholly  with  the 
jury.  In  Kansas,  if  a  license  is  knowingly  issued  to 
first  cousins,  the  officer  may  be  fined  not  exceeding 
one  thousand  dollars  nor  less  than  one  hundred.  In 
Kentucky,  for  knowingly  issuing  a  license  contrary 
to  law,  the  officer  may  not  only  be  fined  not  more 
than  a  thousand  nor  less  than  five  hundred  dollars, 
but  forfeits  his  office. 

In  those  States  where  no  license  is  required,  the 
officer  whose  duty  it  is  to  file  or  record  the  certificate 
returned  by  the  celebrant,  incurs  usually  a  similar 
penalty  to  that  prescribed  where  the  celebrant  fails 
to  make  the  proper  return  to  the  recording  officer. 


CHAPTER  XVII. 

QUALinCATIOlSrS    OF    CELEBEANT CLERGYMEN,  PEIESTS, 

AND    MAGISTRATES. 


"  'T  was  always  held,  and  ever  will, 
By  sage  mankind  discreeter, 
To  anticipate  a  lesser  ill 
Than  undergo  a  greater." 


OiiTE  of  the  offenses  for  which  punishment  is  pre- 
scribed in  connection  with  matrimonial  aifairs,  is 
assuming  to  solemnize  marriage  without  being  au- 
thorized by  law  to  do  so.  It  becomes  important, 
therefore,  to  inquire  what  persons  are  authorized 
to  officiate  at  the  wedding  ceremony.  As  a  rule,  a 
minister  of  the  gospel  or  priest  of  any  denomina- 
tion has  authority  to  celebrate  marriage  in  the  State 
in  which  he  resides  and  carries  on  his  pastoral  work. 
The  difficulty  which  in  England  grew  out  of  the 
construction  of  the  word  "  ordained,"  and  led  to  an 
act  of  Parliament  to  confer  upon  dissenting  minis- 
ters, in  some  parts  of  the  United  Kingdom,  power 
to  solemnize  marriage,  ought  not  to  arise  here, 
especially  in  those  States  where  the  courts  have 
declared    that   the   canon   law   and    those  artificial 


134 


QUALIFICATIONS  OF  CELEBRANT.  135 

rules  governing  the  ecclesiastical  courts  in  Europe 
have  no  place  in  American  institutions  and  form  no 
part  of  our  jurisprudence.  Some  States,  however, 
have  retained  the  word  "  ordained  "  in  this  connec- 
tion, without  other  qualification,  as  Vermont,  Massa- 
chusetts, Minnesota,  Mississippi,  and  Nevada,  not- 
withstanding the  fierce  controversy  sustained  in  the 
House  of  Lords  in  England  as  late  as  1844,  as  to 
what  constituted  Episcopal  ordination,  or  rather  as 
to  whether  the  ceremonies  adopted  by  the  dissenting 
Protestant  bodies,  in  ordaining  clergymen,  were 
sufiicient  to  constitute  such  ministers  "ordained 
priests,''  in  the  eye  of  the  law ;  and  if  not,  whether  a 
person,  other  than  a  priest  ordained  according  to  the 
rites  of  the  Catholic  Church  or  the  Church  of 
England,  could  lawfully  celebrate  marriage.  But  the 
word  is  usually  qualified  by  others,  so  that  these 
vexed  questions  can  no  longer  arise  to  disturb  and 
annoy  the  domestic  tranquillity.  In  Colorado  the  law 
designates  any  licensed  preacher  of  the  gospel.  In 
Delaware  he  must  be  ordained  or  appointed  accord- 
ing to  the  rules  of  the  Church  to  which  he  belongs. 
In  Illinois  he  must  be  a  minister  of  the  gospel  "  in 
regular  standing."  In  Iowa  he  may  be  an  ordained 
or  licensed  officiating  minister  of  the  gospel.  In 
Kansas  he  must  be  a  licensed  preacher  of  the 
gospel.  In  Kentucky  he  must  be  a  licensed  minister 
or  priest,  and  must  give  bond.  In  Louisiana  the 
language  is  so  broad  as  to  cover  any  minister  of  the 
gospel  or  priest   of  any  religious  sect.     In    Maine, 


13*5  THE   GEOGRAPHY  OF  MARRIAGE. 

Missouri,  and  Wyoming  be  may  be  au  ordained 
minister  or  licensed  preacher.  In  Maryland,  where, 
with  the  exception  of  Quakers,  only  clergymen  are 
authorized  to  celebrate  marriage,  the  law  simply 
designates  "a  minister  of  the  gospel."  In  Montana 
he  must  be  a  "  settled  minister  of  the  gospel."  In 
Nebraska  eveiy  preacher  of  the  gospel  authorized  to 
perform  marriage  by  the  usage  of  his  church  may  do 
so.  In  Ne^v  Jersey  he  must  be  a  "  stated  and 
ordained  minister."  In  New  Mexico  the  law  says 
any  ordained  clergyman  without  regard  to  sect.  New 
York  designates  ministers  of  the  gospel,  or  any  legally 
incorporated  religious  congregation,  and  priests  of 
every  denomination.  In  Ohio  any  ordained  minister 
of  any  religious  society  or  congregation  is  designated. 
In  Rhode  Island  not  only  an  ordained  minister,  but 
any  elder  of  any  religious  denomination,  has  the  same 
authority.  In  Tennessee  "  regular  "  ministers  of  the 
gospel  of  every  denomination  are  named  in  connec- 
tion with  Jewish  Rabbles,  having  care  of  souls.  In 
Virginia  and  West  Virginia  he  must  produce  proof 
that  he  is  in  regular  communion  with  his  religious 
society,  and  must  give  bond.  In  Texas,  he  must  be 
regularly  licensed  or  ordained.  In  Washington  he 
may  be  a  minister  or  priest  of  any  church  or  religious 
denomination  in  the  Territory.  In  Wisconsin  he 
nuist  be  an  ordained  minister  or  priest  in  regular 
communion  with  any  religious  society,  and  continue 
to  be  such. 

Some  States  require  a  clei'gyman  or  minister  not 


QUALIFICATIONS   OF  CELEBRANT.  1 37 

only  to  be  regularly  ordained  or  licensed,  but  also 
declare  that  he  must  be  actively  engaged  in  his  pro- 
fession or  in  the  work  of  the  ministry.  This  would 
seem  to  be  true  of  Connecticut,  Iowa,  Massachusetts, 
Michigan,  Montana,  and  New  Hampshire. 

In  some  States  the  right  to  celebrate  marriage  is 
regarded  as  a  privilege  to  be  enjoyed  only  by  such 
clergymen  as  reside  within  the  State  or  Territory. 
This  is  the  law  in  Indiana,  Massachusetts,  Michigan, 
Rhode  Island,  and  Washington.  In  New  Hampshire, 
a  minister  who  resides  out  of  the  State,  but  has  a 
pastoral  charge  in  the  State,  is  qualified.  In  case 
he  has  no  such  charge,  and  resides  out  of  the 
State,  he  is  not  qualified  unless  he  shall  be  specially 
commissioned  by  the  governor  of  New  Ham23shire. 
In  Vermont  he  must  either  reside  in  the  State  or 
labor  statedly  therein  as  a  minister  or  missionary. 

The  importance  of  this  question  of  the  residence 
of  the  officiating  clergymen  becomes  apparent  in  con- 
nection with  cities  and  places  upon  or  near  the  bor- 
ders of  the  States  named,  where  parties  about  to 
marry  by  crossing  a  river,  lake,  or  borderline  may, 
through  ignorance  or  design,  pass  from  one  Jurisdic- 
tion into  another  having  different  and  conflicting 
I'ules  with  regard  to  the  mode  of  entering  into  the 
marriao-e  contract.  In  Connecticut  it  is  declared 
specifically  that  residence  is  not  an  essential  qualifi- 
cation to  authorize  a  clergyman  to  solemnize  a  mar- 
riage, and  in  Louisiana  it  is  not  even  required  that 
he  shall  be  a  citizen  of  the  United  States.      Some 


138  THE    GEOGRAPHY   OF  MARRIAGE. 

States,  witli  I'egard  to  this  question  of  domicile  or 
fixed  locality,  require  the  clergyman  to  procure  and 
file  with  some  clerk  in  the  State  his  license  and  cre- 
dentials, as*  in  Arkansas,  Minnesota,  Nevada,  Ohio, 
and  Wisconsin,  while  in  Kentucky,  Virginia,  and 
West  Virginia  he  is  also  required  to  file  a  bond. 
The  law  in  the  several  States  not  mentioned  above 
is  silent,  so  far  as  the  question  of  the  residence,  domi- 
cile, or  citizenship  of  the  minister  is  concerned. 

In  this  connection,  however,  it  may  be  observed 
that  the  liberal  policy  which  prevails  throughout 
the  United  States  in  matters  of  religious  freedom 
and  the  liberty  of  opinion  guaranteed  to  every  citi- 
zen, has  special  regard  and  consideration  for  the 
marriage  contract.  People  of  every  creed  and  na- 
tionality have,  since  these  shores  were  first  discov- 
ered, flocked  to  the  New  World,  and  the  breadth 
and  scope  of  the  political  liberty  enjoyed  in  the  re- 
public here  established,  have  attracted  the  attention 
of  mankind  and  stimulated  emigration,  so  that  mul- 
titudes from  every  nation  and  from  every  clime,  have 
sought  a  home  in  the  territory  of  the  United  States. 
The  laws  governing  the  domestic  life  are  sufliciently 
broad  to  harmonize  all  shades  of  opinion  in  this 
cosmopolitan  commonwealth ;  so  that  individuals 
belonging  to  a  moral  or  religious  body,  organization, 
congregation  of  any  description,  whetlier  orthodox  or 
or  heterodox,  whether  Jew  or  Gentile,  or  calling 
themselves  merely  speculators  and  inquirers  in  the 
field  of  morals  or  ethical  culture — may  nevertheless 


QUALIFICATIONS  OF  CELEBRANT.  1 39 

marry  and  be  given  in  marriage  in  the  mode  pre- 
scribed by  the  churcli,  society,  or  congregation  to 
which  they  belong,  so  long  as  monogamy,  and  not 
polygamy,  is  practised,  and  the  rites  or  •  ceremonies 
do  not  offend  decency  or  public  propriety. 

A  civil  magistrate,  authorized  to  celebrate  mar- 
riage, as  a- judge,  a  justice  of  the  peace,  a  mayor  of  a 
city,  a  governor,  or  other  officer,  must  usually  act 
within  the  territory  to  which  his  jurisdiction  is  con- 
fined while  in  the  exercise  of  his  other  official  duties  : 
a  governor,  anywhere  in  the  State;  a  judge,  usually 
though  not  always  within  his  judicial  district ;  a  jus- 
tice of  the  peace,  in  his  county ;  and  a  mayor,  within 
the  limits  of  his  city.  In  Florida,  where  a  notary 
public  may  officiate  at  a  wedding,  he  must  act  within 
his  county.  In  Louisiana  only  notaries  within  the 
parish  of  West  Feliciana  are  qualified  to  act. 

In  every  State  and  Territory  in  the  United  States, 
a  clergyman  or  minister,  with  the  qualifications  re- 
ferred to  above,  is  authorized  to  solemnize  marriage. 
In  three  States,  Maryland,  Virginia,  and  West  Vir- 
ginia, this  authority  is  conferred  exclusively  upon 
the  clergy,  and  no  civil  magistrate  or  other  officer 
has  a  right  to  officiate  at  the  matrimonial  altar.  But 
in  the  two  States  last  named,  a  clergyman  in  order 
to  render  himself  eligible  must  file  a  bond  in  the 
penal  sum  of  fifteen  hundred  dollars.  In  Rhode 
Island  an  elder  of  any  denomination  is  qualified  to 
officiate.  A  justice  of  the  peace  is  authorized  to 
solemnize  marriage  in  every  State  and  Territory  in 


I40  THE   GEOGRAPHY  OF  MARRIAGE. 

the  United  States  except  in  Delaware,  Maryland, 
Rhode  Island,  Virginia,  and  West  Virginia.  Mayors 
of  cities  are  qualified  also  in  Iowa,  New  Jersey,  New 
York,  New  Mexico  and  South  Carolina,  and  in  Dela- 
ware the  mayors  of  Wilmington  and  New  Castle. 
In  Mississippi  a  member  of  the  board  of  supervisors 
may  officiate.  This  honor  is  conferred  upon  the 
highest  civil  officer  in  the  commonwealths  of  Arkan- 
sas and  Montana,  where  the  governor  is  designated. 
Also  in  New  Mexico,  if  he  should  be  classed  as  a 
civil  magistrate.  Also  in  South  Carolina,  where  any 
officer  chosen  by  the  parties  is  qualified.  Maine, 
however,  is  the  only  State  in  the  Union  where  this 
peculiar  honor  has  been  conferred  upon  a  woman. 
The  right  to  solemnize  marriage  in  that  State  has 
been  accorded  to  them.  They  are  required  to  be 
appointed  and  commissioned  by  the  governor  for 
that  purpose. 

In  order  to  avoid  difficulty  and  embarrassments, 
which  might  perhaps  arise  where  the  celebrant  acted 
without  due  authority,  or  without  his  territory  or 
jurisdiction,  in  many  of  the  States  the  law  declares 
that  no  marriage  supposed  by  the  parties,  or  by  one 
of  them,  to  be  valid  shall  be  in  any  wise  affected  by 
reason  of  want  of  autliority  in  the  minister  or  magis- 
trate or  other  person  pretending  to  be  such  minister 
or  magistrate  who  performed  the  ceremony,  nor  shall 
such  objection  be  heard  from  one  party,  who  has 
fraudulently  induced  the  other  to  believe  the  mar- 
riage was  legal. 


CHAPTER  XVIII. 

IS    A    MAERIAGE,     VALID     IN    THE     STATE    OR     COUNTRY 
\VHERE    CELEBRATED,    VALID    ELSEWHERE. 


"  Bad  laws  are  the  worst  sort  of  tyranny  ;  they  derive  a  particular  ma- 
lignity from  the  wisdom  and  soundness  of  the  rest  of  our  institutions." 

Burke. 


The  boldness  of  an  inquiry  whicli  cliallenges  any- 
settled  fundamental  principle,  may  well  excite  sur- 
prise and  wonder.  In  this  busy  world,  with  its 
varying  changes  and  uncertainties,  there  are  yet 
some  principles  in  the  realm  of  Jurisprudence,  which 
the  student  is  taught  to  believe  are  clearly  and 
definitely  established,  fixed  and  abiding  as  the  stars. 
One  of  these  primary  axioms  is  the  familiar  rule  of 
private  international  law,  that  a  marriage,  valid 
where  solemnized,  is  valid  everywhere.  But  the 
evils  growing  out  of  a  host  of  conflicting  laws  on 
the  subject  of  marriage  and  divorce,  in  nearly  half  a 
hundred  independent  sovereignties,  embraced  within 
the  same  commonwealth,  become  painfully  conspicu- 
ous when  this  cardinal  doctrine  of  leo;al  science  comes 
to  be  examined.  To  this  wholesome  rule,  which  con- 
stitutes the  strongest  bulwark  relied  upon  to  sustain 
the  integrity  and  sanctity  of  marriage,  the  exceptions 

141 


142  THE    GEOGRAPHY  OF  MARRIAGE. 

are  supposed  to  be  rare  indeed.  Incest  and  polyg- 
amy embrace  tlie  only  exceptions  heretofore  con- 
ceded by  elementary  writers.  The  scope  of  these 
exceptions,  however,  are  magnified  in  view  of  the 
practical  operation  of  the  inconsistent  divorce  laws 
at  present  existing  in  the  United  States.  Indeed,  it 
may  be  said  that  the  endless  complications  and 
difficulties  which  have  grown  out  of  this  intricate 
conflict  of  authority,  seriously  threaten  the  institu- 
tion of  marriage.  Divorces  can  be  obtained  against 
non-residents  without  notice,  and  with  absolute 
secrecy.  In  attempting,  in  some  quarters,  to  punish 
divorced  persons  for  whose  guilt  the  marriage  has 
been  dissolved,  local  disabilities  are  prescribed,  which 
render  them  incapable  of  contracting  marriage  in  one 
State,  while  in  another  the  disability  so  created  is 
not  recognized. 

These  contradictory  rules  of  law,  whereby  an  indi- 
vidual is  pei'mitted  to  many  in  one  locality,  while 
forbidden  to  do  so  in  another,  result  in  endless 
suffering  and  wretchedness.  They  prescribe  conflict- 
ing regulations  which  render  the  nuptials  valid  in 
one  place  and  void  in  another.  The  wedded  com- 
panion is  a  wife  here,  while  she  is  simply  regarded 
as  a  concubine  there.  The  status  of  cliildren  are 
made  thereby  legitimate  in  one  State  and  bastards 
in  another — capable  of  inheriting  in  one  tribunal, 
while  disinherited  elsewhere.  This  state  of  things 
has  virtually  abrogated  and  set  at  naught  the  doctrine 
that  a  marriage  valid  where  solemnized  is  valid  every- 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  1 43 

where.  The  necessity  of  a  uniform  and  harmonious 
system,  fixing  and  defining  the  status  and  disabilities 
of  divorced  persons,  and  the  ofiPspring  of  their  mar- 
riages, is  urgent  and  pressing.  Marriage  is  holy  and 
sacred ;  the  anomalous  state  of  the  law  with  respect 
to  it  degrades  it,  and  casts  upon  it  reproach  and 
odium. 

This  disability,  whereby  divorced  persons  in  cer- 
tain States  are  forbidden  to  wed,  constitutes  but  one 
of  the  causes  'which  enlarge  the  exceptions  to  the 
rule,  that  a  marriage  valid  where  solemnized  is  valid 
everywhere.  A  number  of  the  States  have  extended 
the  crime  of  incest  so  as  to  embrace  relationships 
which  include  the  marriasje  of  first  cousins.  The 
names  of  these  States,  with  a  reference  to  this  branch 
of  the  subject,  will  be  found  in  a  previous  chapter, 
relating  to  marriage  among  blood  relatives,  at  page 
51.  A  number  of  legislatures  throughout  the 
country  have  also  declared  marriage  among  certain 
step-relatives,  and  kindred  created  by  ties  of  afianity, 
to  be  incestuous  and  void.  While  these  kindred  are 
forbidden  to  marry  in  the  particular  States  referred 
to,  they  may  lawfully  marry  in  those  States  where 
the  crime  of  incest  includes  only  lineal  ancestors  and 
descendants,  and  relatives  in  the  collateral  line,  in- 
cluding only  brothers  and  sisters.  The  State  which 
has  most  recently  legislated  on  this  subject  is  Illinois, 
which  forbade  first  cousins  to  marry  by  a  law  passed 
in  June,  1887.  In  the  chapter  mentioned  relating  to 
the  subject  of  marriage  among  blood-relatives,  the 


144  THE   GEOGRAPHY  OF  MARRIAGE. 

question  was  raised  as  to  what  might  be  the  status 
in  the  supposed  case  of  cousins  living  in  Chicago, 
who  went  to  Milwaukee  and  were  there  married. 
By  the  law  of  Wisconsin  the  marriage  is  valid ;  by 
the  law  of  Illinois  it  is  void.  How  far  will  the 
courts  of  Illinois  apply  the  doctrine  that  a  marriage 
valid  where  celebrated  is  valid  everywhere  ?  True, 
where  the  marriage  involves  the  crime  of  incest,  the 
rule  has  no  application.  But  what  is  incest  within 
the  meaning  of  the  exception  ?  Is  it  to  include  any 
marriage  among  distant  relatives,  or  persons  related 
by  affinity,  that  any  legislature  anywhere  may  choose 
to  prohibit.  Suppose  the  legislature  should  choose 
to  declare  that  marriage  between  sixth  cousins  shall 
be  incestuous  and  void.  In  that  case  such  marriages, 
while  they  would  constitute  incest  within  the  mean- 
ing of  the  particular  local  statute,  are  certainly  not 
embraced  within  the  ordinary  meaning  of  that  crime. 
Incest,  according  to  Mr.  Joel  P.  Bishop,  one  of  the 
ablest  writers  upon  this  subject,  embraces  only  such 
marriages  as  oifend  the  law  of  nature,  or  more 
coiTectly  speaking,  the  moral  law  as  revealed  by 
divine  inspiration  in  the  decrees  of  Moses.  The  mar- 
riage of  first  cousins,  as  has  been  shown,  does  not 
oifend  this  divine  law.  Hence  it  cannot  be  said  that 
such  marriages  are  within  the  exception  to  the  rule 
which  declares  that  a  marriage  valid  where  solem- 
nized is  valid  everywhere;  and  cousins  lawfully 
espoused  in  Wisconsin  should,  according  to  some 
precedents,  liave  their  marriage  sustained  as  valid  in 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  145 

Illinois.  In  every  other  State  it  would  be  legal.  A 
similar  question  came  before  the  courts  of  Massa- 
chusetts many  years  ago,  at  a  time  when  whites  and 
Indians  were  forbidden  to  marry  there.  The  couple, 
who  resided  in  Massachusetts,  finding  their  marriage 
would  be  void  if  performed  at  home,  went  into 
Rhode  Island,  where  they  could  marry  legally,  and 
were  wedded.  The  marriage  was  held  to  be  good  in 
Massachusetts  also,  on  the  ground  that  the  law  of 
that  State  contained  only  a  prohibitory  clause,  and 
declared  such  marriages  void.  It  did  not,  how- 
ever, declare  that  in  case  citizens  of  Massachusetts 
went  out  of  the  State  for  the  purpose  of  evading  its 
laws,  with  the  intention  of  returning,  such  foreign 
marriage  would  be  void  in  Massachusetts.  In  other 
words,  the  law  must  not  only  declare  a  particular 
marriage  to  be  void  if  performed  Avithin  the  State, 
but  must  go  further  and  declare  such  marriage  void 
wherever  it  may  be  solemnized. 

Upon  the  same  principle  a  man  in  Kentucky 
who  desired  to  many  the  widow  of  a  deceased  uncle, 
finding  he  could  not  do  so  in  that  State,  went  to 
Tennessee,  where  the  nuptials  were  celebrated,  and 
the  marriage  being  legal  in  the  latter  State,  was  sub- 
sequently held  to  be  valid  in  Kentucky  also.  The 
courts  in  many  Southern  States,  however,  refuse  to 
recognize  mixed-race  marriages  falling  within  the 
prohibition  designated  miscegenation.  In  some 
instances  the  laws  provide  that  where  such  marriages 
are  performed  out  of  the  State,  they  will  be  void,  if 


146  THE   GEOGRAPHY  OF  MARRIAGE. 

the  parties  subsequently  return.  The  courts  of 
Louisiana  have  declared  that  such  marriages  never 
can  have  any  validity  within  her  borders. 

In  the  case  under  consideration  with  regard  to  the 
marriage  of  cousins  in  Illinois,  the  law,  while  it 
makes  such  marriages  invalid,  does  not  declare  that 
they  shall  be  void,  if  entered  into  by  citizens  of  Illi- 
nois without  the  State.  The  punishment,  however, 
is  severe,  and  not  only  subjects  the  offender  to 
imprisonment  for  a  term  not  exceeding  ten  years,  but 
declares  that  the  guilty  party  shall  be  deemed  infa- 
mous and  forever  incapable  of  holding  any  office  or 
voting  at  any  election. 

In  a  number  of  States,  the  statute  expressly  de- 
clares that  a  marriage  valid  where  solemnized,  shall 
be  valid  in  such  States  respectively.  This  is  true 
of  Ai'kansas,  Arizona,  California,  Colorada,  Dakota, 
Idaho,  Kansas,  Kentucky,  Nebraska,  New  Mexico, 
and  Wyoming.  These  states,  with  the  exception 
only  of  California,  Idaho,  Kentucky,  Nebraska,  and 
New  Mexico,  forbid  marriage  of  first  cousins.  The 
exceptions  to  the  rule  as  to  marriages  valid  where 
celebrated,  or  with  respect  to  incestuous  marriages, 
so  far  as  declared  in  the  statutes,  seem  to  be  as 
follows :  In  Colorado  the  law  says,  a  bigamous  mar- 
riage is  void,  no  matter  where  it  was  celebrated.  In 
Georgia  there  is  a  provision  to  the  effect,  that  a 
marriage  which  would  l)e  void  if  contracted  in 
Georgia,  will  be  void  if  made  by  parties  out  of  the 
State,  intending  to  subsequently  reside  in  Georgia. 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  1 47 

In  Massachusetts,  Vermont,  and  West  Virginia,  there 
are  provisions  declaring  that  where  the  parties  to  an 
incestuous  marriage  reside  within  the  State,  and  go 
out  of  it  for  the  purpose  of  evading  tlie  marriage 
laws,  intending  to  return,  such  marriages  if  contrary 
to  their  laws  respectively,  are  voidable.  In  Maine, 
however,  a  marriage  contracted  under  such  circum- 
stances, is  declared  to  be  void. 

In  this  State  of  uncertainty,  if  the  first  cousins 
resided  in  Nebraska,  or  Colorado,  or  Arizona,  where 
they  are  foi'bidden  to  marry,  and  they  should  never- 
theless marry  in  a  State  where  such  a  marriage 
would  be  valid,  and  afterwards  return  to  their 
homes,  how  far  would  the  laws  there,  which  declare 
in  so  many  words  that  a  marriage  valid  where  sol- 
emnized is  valid  in  such  State,  afford  protection  to 
the  wedded  cousins  ? 

In  the  absence  of  a  uniform  law,  these  queries, 
must  remain  unanswered  in  the  respective  States, 
until  definitely  passed  upon  by  their  highest  tribu- 
nals. 

Since  this  inquiry  is  of  universal  application,  it 
may  be  well  to  inquire  how  the  courts  abroad  have 
considered  this  fundamental  maxim,  that  a  marriage 
valid  w^here  solemnized  is  valid  everywhere.  Lord 
Brougham  has  gone  even  so  far  as  to  hold  that  a 
marriage  solemnized  in  England  can  only  be  dis- 
solved in  England.  Justice  would  seem  to  require 
that  the  rule  should  remain  inviolate,  no  matter 
where   the    marriage   was   perforaied,    or   in   what 


148  777^   GEOGRAPHY   OF  MARRIAGE. 

obscure  corner  of  the  world  tlie  wedding  took 
place,  or  by  wbat  strange  rites  or  customs  it  was 
consummated.  When  the  ceremonies  have  been  per- 
formed, which  are  recognized  by  universal  custom  to 
establish  the  relation  of  husband  and  wife,  the 
offspring  of  such  a  marriage  are  legitimate,  and  ought 
not  to  suffer  the  loss  of  inheritance  or  be  denied 
their  birthright,  because  the  nuptial  ceremonies 
happen  to  be  performed  differently  in  different 
countries.  The  English  courts  have  recently  refused 
to  recognize  the  marriage  of  an  English  officer,  who 
espoused  the  niece  of  a  powerful  native  warrior  chief 
who  reigned  among  the  savage  tribes  in  Southern 
Africa.  The  Englishman  was  stationed  in  the  dark 
continent,  and  after  remaining  for  a  time  among  the 
Hottentots  near  Cape  Town,  was  appointed  British 
Resident  with  Montsioa,  the  chief  of  the  Baralongs,  a 
barbarous  or  semi-barbarous  people  dwelling  in  a 
country  beyond  the  British  limits,  known  among 
those  strange  tribes  as  Bechuanaland.  It  was  claimed 
that  these  Africans  had  no  religion  or  religious  rites, 
and  that  they  practised  polygamy,  a  custom  which 
prevails  in  that  benighted  country.  Among  the  house- 
hold of  the  African  chief  with  whom  the  British  officer 
resided  was  Teepoo,  a  niece  of  the  chief,  who  found 
favor  in  the  eyes  of  the  foreign  soldier  at  her  uncle's 
rude  court.  After  a  novel  courtship,  the  white  man 
asked  the  hand  of  Teepoo  in  marriage,  and  having 
received  a  favorable  answer,  his  suit  was  accepted, 
and    all  the    preparations   for    the    wedding  were 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  1 49 

arranged  in    accordance  with    the    custom    of   the 
country. 

The  parents'  consent  was  the  first  essential,  which, 
having  been  obtained,  was  accompanied  with  the 
usual  agreement  as  to  the  number  of  cattle  the  hus- 
band must  deliver  to  his  father-in-law,  after  the  birth 
of  the  first  child ;  no  compensation  being  required 
should  the  union  not  prove  fruitful.  It  then  be- 
came the  duty  of  the  groom  to  slaughter  an  animal, 
— a  sheep,  a  buck,  an  ox,  or  a  cow — and  this  task 
was  eagerly  performed.  The  groom  was  next  re- 
quired to  take  the  head  of  the  animal  slain  to  the 
bride's  parents,  and  its  hide  also,  which  is  cleaned 
and  softened.  Having  performed  these  ofiices,  the 
man  and  the  woman  became,  according  to  the  custom 
of  the  people  of  Bechuana,  husband  and  wife.  All 
these  things  the  British  ofiicer  did,  with  the  purpose 
and  intent  of  making  Teepoo,  the  Baralong  girl,  his 
bride,  and  thereupon  she  became  his  lawfully  wed- 
ded wife,  according  to  the  laws  of  Bechuanaland. 
The  husband,  though  dwelling  in  an  uncivilized 
country,  in  the  camp  of  a  savage  chief,  who  was 
almost  constantly  engaged  in  war  with  his  neighbors, 
had  property  in  England,  and  derived  an  income 
from  his  father's  estate  in  Yorkshire.  The  marriage 
took  place  in  October,  1 883,  and  in  July,  1884,  the 
English  ofiicer  was  killed  in  battle,  in  a  fight  with 
the  Boers.  Ten  days  after  the  father's  death,  a 
little  daughter  was  born,  the  fruit  of  the  marriage 
with  Teepoo.     The  property  of  Teepoo's  husband 


150  THE   GEOGRAPHY  OF  MARRIAGE. 

came  to  liim  by  his  father's  will,  which  provided 
that  he  should  have  the  income  of  a  certain  fund  so 
long  as  he  lived,  and  upon  his  death  the  principal 
should  go  to  his  children  should  he  leave  any,  and  if 
not  then  the  estate  was  to  go  to  his  elder  brother. 

These  novel  circumstances  brought  the  little 
Anglo- African  into  an  English  court,  claiming  the 
property  left  to  her  father  and  his  children.  The 
claim  was  contested  by  the  elder  brother,  who  con- 
tended that  the  daughter  of  Teepoo  was  not  a  child 
— or  at  least  not  a  legitimate  child — of  his  brother, 
for  the  reason  that  his  marriage,  though  valid  in 
Africa,  ought  not  to  be  sustained  as  valid  in  Eng- 
land. Counsel  for  the  child  relied  upon  the  well 
established  rule  of  private  international  law  above 
referred  to,  that  a  marriage  valid  where  solemnized 
Avas  valid  everywhere.  The  court  refused  to  recog- 
nize the  principle  as  applicable  beyond  the  limits  of 
Christendom,  and  declared  that  it  did  not  extend  to 
polygamous  or  semi-civilized  people  unless  their  mar- 
riacre  ceremonies  are  "  formed  on  the  same  basis  as 
marriages  throughout  Christendom."  The  court, 
however,  expressed  the  hope  that  the  English  rela- 
tives would  care  for  and  support  the  infant,  declar- 
ing that  whatever  may  be  her  legal  status,  she  is 
undoubtedly  his  child. 

The  grounds  upon  which  this  decision  rests  are 
open  to  criticism.  It  is  proper  to  punish  polygamy, 
but  is  it  just  to  punish  tlie  offspring  of  such  mar- 
riages %     It  is  true,  as  Mr.  Bishop  observes,  that  "  no 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  151 

country  in  wbicli  polygamy  is  not  tolerated  can  allow 
a  man  to  have  two  wives  at  the  same  time.  In  such 
a  case,  the  court  would  be  obliged  to  declare  a 
second  marriage  of  either  of  the  parties  to  be  void, 
wherever  it  may  have  been  contracted."  The  little 
daughter  of  the  English  officer,  however,  was  not 
disinherited  on  the  ground  that  her  father  had  prac- 
tised polygamy,  but  because  polygamy  was  practised 
in  the  country  where  the  wedding  took  place ;  and 
the  court  held  that  this  fact  alone  raised  the  pre- 
sumption that  the  Englishman  married  in  that  coun- 
try with  the  object  and  intent  of  practising  polygamy. 
The  presumption  is  unfair  and  wholly  unwarranted. 
Polygamy  is  a  crime,  but  the  mere  fact  that  an  Eng- 
lishman gets  married  in  a  polygamous  country  will 
not  create  a  presumption  that  he  intends  to  commit 
a  crime. 

The  law  will  not  presume  crime.  Suppose  an  Eng- 
lishman, while  travelling  in  the  United  States,  should 
visit  Utah,  where  polygamy  is  practised,  and  should 
happen  to  meet  a  lady  whose  charms  he  was  unable 
to  resist,  and  marry  her  in  Salt  Lake  City.  Would 
the  court,  after  his  death,  in  view  of  the  fact  that  he 
married  but  once,  bastardize  his  children  because  he 
was  married  in  a  country  where  polygamy  is  prac- 
tised ?  Would  the  law  presume  he  intended  to 
practise  polygamy  because  he  married  a  wife  in 
Utah  ? .  In  the  English  case  the  court  went  further, 
and  declared  as  an  additional  reason  for  refusino; 
to  recognize  the  Baralong  marriage,  that  it  was  not 


152  THE    GEOGRAPHY     OF  MARRIAGE. 

celebrated  in  a  Christian  land,  and  must  for  tliat 
reason  also  be  disregarded.  The  proposition  is  too 
broad.  In  India  tlie  Parsee  is  distingiiislied  for 
learning  and  refinement,  and  yet  sliould  a  European 
clioose  to  marry  a  Parsee  lady,  it  would  indeed  seem 
unjust  to  disinherit  his,  children  because  the  wedding 
was  performed  at  Bombay,  or  elsewhere,  beyond  the 
confines  of  Christendom.  The  same  reasoning  would 
apply  to  a  wedding  in  China  or  Japan,  although  the 
bride  might  be  highly  educated  and  refined  and 
skilled  in  Oriental  accomplishments  ;  or  to  a  wed- 
ding in  Constantinople,  where  the  bride  and  groom, 
though  citizens  of  Christian  lands,  might  fancy  a 
wedding  celebrated  in  a  mosque. 

The  discussion  opens  a  wide  field  of  inquiry,  and 
while  good  reasons  may  exist  for  refusing  to  recog- 
nize as  valid  a  marriage  solemnized  in  a  savage 
country,  the  mere  fact  •  that  the  ceremony  was  per- 
formed beyond  the  confines  of  Christendom,  or  not 
in  accordance  with  civilized  customs ;  or  in  a  land 
where  j)olygamy  is  practised  by  others,  when  nothing 
of  the  kind  was  in  fact  indulged  in,  seems  alto- 
gether too  narrow  to  support  a  claim  for  disinherit- 
ing of  innocent  children  whose  paternity  is  not  ques- 
tioned or  denied. 

Yet  some  of  the  customs  which  prevail  among 
savai>;e  and  uncivilized  tribes  are  of  such  novel  and 
undignified  character,  and  lacking  in  every  element 
necessary  to  be  regarded  as  binding  matrimonial 
obligations,  that  tribunals  in  enlightened  countries 


MARRIAGE    VALID    WHERE    SOLEMNIZED.  1 53 

might  well  hesitate  to  recognize  them  where  rights 
of  innocent  offspring  are  not  involved.  A  glance  at 
some  of  the  strange  and  grotesque  modes  of  sealing 
the  bonds  of  matrimony  in  remote  parts  of  the  world 
may  prove  interesting. 

In  "  the  bush  "  in  Australia  and  New  Zealand,  where 
the  natives  indulge  in  war  to  such  an  extent  that  it 
may  be  regarded  as  the  normal  state  of  society,  the 
bride  is  usually  stolen  or  captured  from  the  enemies' 
country,  and  is  the  trophy  and  reward  of  the  physical 
prowess  of  the  savage  lover.  Among  the  natives  of 
Borneo,  it  is  said,  no  man  becomes  eligible  to  marital 
privileges  until  he  has  cut  off  the  head  of  an  enemy. 
In  Patagonia  no  marriage  is  permitted  without  the 
consent  of  the  chief  of  the  tribe  to  which  the  bride 
belongs.  In  portions  of  the  Polynesian  Archipelago, 
where  the  natives  are  all  expert  divers,  it  is  said  that 
the  bride  is  bestowed  upon  the  best  swimmer.  The 
suitors  are  drawn  up  in  line  along  the  shore.  As 
soon  as  the  bride  appears  all  are  required  to  plunge 
at  once  into  the  water,  and  he  that  remains  under 
longest  receives  the  nuptial  prize. 

It  has  been  observed  that  the  maxim,  that  a  mar- 
riage valid  where  solemnized  is  valid  everywhere,  is 
a  maxim  of  private  international  law,  applicable  to 
all  civilized  countries.  France,  however,  refuses  to 
recognize  this  just  and  w^holesome  principle.  By 
the  laws  of  that  country,  a  Frenchman  w^ho  marries 
abroad  is  obliged  to  publish  the  banns  and  the  notice 
of  intention  to  wed  in  accordance  with  the  French 


154  THE   GEOGRAPHY  OF  MARRIAGE. 

law,  in  order  to  render  his  marriage  valid  and  bind- 
ing in  his  native  land.  He  is  required  to  post  a 
notice  of  the  wedding  in  the  office  of  the  French 
consul  in  the  country  where  the  ceremony  is  to  be 
performed,  and  send  a  copy  of  it  also  to  the  office  of 
the  mayor  or  other  official  head  of  the  municipality 
in  France  where  the  groom  resides  or  formerly  re- 
sided. Should  a  Frenchman  travelling  in  the  United 
States,  or  even  residing  here,  seek  the  hand  of  an 
American  lady  in  wedlock,  what  would  she  know, 
or  what  could  she  be  supposed  or  expected  to  know, 
about  the  laws  of  marriage  in  France  ?  And  yet, 
if  she  should  marry  under  such  circumstances,  a 
failure  to  comply  with  the  French  law  with  respect 
to  publication  and  notice  would  enable  her  husband, 
should  he  feel  disposed  to  reject  his  manhood  for 
selfish  ends,  to  repudiate  the  marriage  in  France  with 
impunity.  The  wife  would  find  no  protection  in  the 
French  courts,  since  the  friendly  doctrine,  that  a  mar- 
riage valid  where  solemnized  is  valid  everywhere, 
finds  no  place  in  the  laws  of  that  country. 

The  experience  of  Elizabeth  Patterson,  the  hand- 
some, dashing,  and  accomplished  belle  of  Baltimore, 
a  city  which  has  always  been  noted  for  its  handsome 
women,  who  espoused  Jerome  Bonaparte,  illustrates 
this  point.  The  marriage  of  Madame  Bonaj^arte 
l3elongs  to  history.  "  It  disturbed,"  says  Didier, 
her  biographer,  "  the  plans  of  the  greatest  conqueror 
of  modern  times,  and  produced  a  rupture  between  a 
pope  and  an  emperoi-."     But  the  gross  injustice  done 


MARRIAGE    VALID    WHERE   SOLEMNIZED.  1 55 

to  the  deserted  wife  of  tlie  young  Frencliman  through 
the  displeasure  of  her  brother-in-law,  the  great  Na- 
poleon, has  never  been  corrected  by  amending  in 
that  respect  the  code  which  bears  his  name.  The 
marriage  of  Madame  Bonaparte  was  solemnized  in 
the  city  of  Baltimore  in  due  form  by  the  Right  Rev- 
erend John  Carroll,  Bishop  of  Baltimore,  afterwards 
archbishop  of  the  diocese,  and  the  first  primate  of 
the  Catholic  Church  in  America.  It  was  recognized 
as  valid  by  Pius  VII.,  not  only  in  the  United  States, 
but  in  France  as  well,  notwithstanding  that  the  laws 
of  that  country  as  to  notice  and  publication  had  not 
been  complied  with.  Yet  the  courts  of  France  re- 
fused to  recognize  it,  and  the  law  has  not  since  been 
altered  with  respect  to  marriages  contracted  by 
Frenchmen  while  abroad. 


CHAPTER  XIX. 


DIVORCE. 


"  It  is  in  vain  for  a  man  to  be  born  fortunate,  if  he  be  unfortunate  in  his 
marriage. " — Dacier. 


It  has  been  sliown  that  marriage  is  a  natural 
right.  Hence  it  may  be  contracted  without  per- 
mission of  the  legislature.  But  it  cannot  be  dis- 
solved without  legislative  sanction.  It  can  be  as- 
sumed without  the  consent  of  society,  and,  therefore, 
independent  of  State  statutes  ;  but  divorce  is  a  crea- 
tion of  State  statutes.  This  power  to  dissolve  the 
bonds  of  matrimony  is  a  sovereign  attribute  which 
belongs  to  society.  It  is  inherent  in  the  State ; 
and  each  may  exercise  it  exclusively,  and  inde- 
pendently of  the  other.  Under  the  Federal  Con- 
stitution Congress  cannot  legislate  upon  the  sub- 
ject, except  as  to  the  territories.  This  power  to 
sunder  the  marriage  tie  embraces,  incidentally  within 
its  scope,  power  to  designate  the  causes  for  which  a 
dissolution  of  the  nuptial  bond  shall  be  decreed.  It 
is  a  tremendous  power,  and  the  welfare  of  society 
de2)end8  upon  the  ])rudence  and  wisdom  with  which 
it  is  exercised.     Marriage  binds  together  the  family 

156 


DIVORCE.  157 

in  sacred  unity ;  and  in  the  integrity  of  the  family 
relation  the  security  and  stability  of  the  State  must 
repose.  The  safety  and  prosperity  of  society,  there- 
fore, is  involved  in  this  question  of  divorce,  whereby 
family  ties  are  dissolved  and  the  work  of  disintegra- 
tion besiun. 

This  power  never  having  been  surrendered  by  the 
States  to  the  Federal  Government,  we  have  in  the 
American  Union  as  many  divorce  laws  as  there  are 
States  in  our  united  commonwealth,  with  the  single 
exception  of  South  Carolina,  the  only  sovereignty 
which  has  not  seen  fit  to  create  a  law  sanctioning  the 
dissolution  of  marriage.  As  a  result  our  divorce 
legislation  differs  widely  with  respect  to  the  mode  in 
which  a  marriage  shall  be  dissolved,  and  as  to 
the  causes  for  which  such  dissolution  may  be  de- 
creed. In  some  States  the  act  of  adultery  constitutes 
the  only  ground  of  divorce,  though  legal  separations 
are  authorized  for  a  variety  of  causes.  In  others,  the 
grounds  are  various,  embracing  all  grades  of  mis- 
conduct and  marital  delinquencies,  cruelty,  drunken- 
ness, abandonment,  conviction  of  felony,  uniting  with 
religious  fanatics  who  disregard  the  sanctity  of 
marriage,  contracting  or  concealing  specific  diseases 
consequent  upon  a  violation  of  the  bridal  vow. 
Very  loose  and  sweeping  provisions  have  been  in- 
cluded in  the  laws  of  some  States,  authorizing 
divorce  for  light  and  trivial  causes.  These  compre- 
hensive features  are  usually  termed  "the  omni- 
bus  clause."     Under  these  broad  articles  a  disso- 


158  THE    GEOGRAPHY  OF  MARRIAGE, 

lution  of  the  marriage  was  permitted  for  causes 
deemed  sufficient  to  defeat  the  purposes  of  the 
marriage  relation,  or  tending  to  permanently  destroy 
the  happiness  of  the  party  seeking  relief  from  the 
conjugal  yoke,  or  for  any  cause  deemed  sufficient  by 
the  court. 

These  "  omnibus  clauses  "  are  indeed  the  wonder 
of  our  American  legislation,  and  constitute  a  most 
remarkable  feature  of  modern  jurisprudence.  They 
afford  either  husband  or  wife  an  opportunity  of 
bi'eaking  up  the  home,  and  dissolving  the  marriage 
upon  the  slenderest  pretexts,  for  reasons  suited  to 
the  whim  or  caprice  of  either.  They  operate  cer- 
tainly to  put  a  premium  on  divorce.  Evil  desires 
and  selfish  motives  may  be  gratified  under  the  forms 
of  law.  By  these  loose  provisions  the  security  and 
stability  of  social  order  are  endangered,  and  through 
their  blighting  influence  the  home  and  the  family 
are  allowed  to  rest  upon  no  better  foundation  than 
a  house  built  upon  shifting  sands. 

The  broadest  of  these  "  omnibus  clauses  "  formerly 
existed  in  Arizona,  Connecticut,  and  Kentucky,  but 
within  recent  years  have  been  considepably  modified 
in  those  States  respectively.  They  still  exist,  how- 
ever, in  thirteen  States,  namely :  Florida,  Kentucky, 
Missouri,  Montana,  New  Mexico,  Oregon,  (Pennsyl- 
vania, as  to  limited  divorce  only),  Kliode  Island, 
Texas,  Vermont,  Washington,  and  Wisconsin.  The 
provisions  in  some  other  States,  thougli  liberal,  are  not 
sufficiently  loose  to  be  regarded  as  "■  onmibus  clauses." 


DIVORCE.  1 59 

The  law  as  it  formerly  stood  in  Arizona,  Connecti- 
cut, and  Kentucky,  practically  made  divorce  free  in 
tliose  States.  In  Connecticut  it  was  lawful  to  grant 
a  divorce  for  "  any  such  misconduct  as  permanently 
destroys  the  happiness  of  the  petitioner,  and  defeats. 
the  purposes  of  the  marriage  relation."  The  persist- 
ent and  vigorous  agitation  upon  the  subject  of 
divorce  legislation,  and  the  alarming  increase  of 
divorces  annually  granted  in  Connecticut,  finally  led 
to  the  repeal  of  this  clause  in  1880.  The  law  of 
Kentucky,  though  shorter  than  the  famous  Connecti- 
cut statute,  was,  if  possible,  even  more  comprehen- 
sive, since  it  permitted  divorce  for  "  any  cause  in  the 
discretion  of  the  court."  This  broad  provision  has 
been  repealed,  but  the  law  now  allows  a  dissolution 
of  the  marriage  "where  the  husband  habitually 
behaves  toward  his  wife,  for  not  less  than  six  months, 
in  such  cruel  and  inhuman  manner  as  to  indicate  a 
settled  aversion  to  her,  or  to  destroy  permanently 
her  peace  or  happiness," 

But  the  most  marvellous  of  all  the  "omnibus 
clauses,"  and  the  queerest  piece  of  legislation  con- 
trived by  mortal  man,  remained  in  force  in  Arizona 
from  1871  to  1877,  when  a  new  revision  of  the 
statutes  was  made,  from  which  it  was  wisely  omit- 
ted. It  was  sufficiently  comprehensive  to  confer 
upon  the  court  power  to  draw  upon  the  imagination 
and  evolve  from  the  inner  consciousness  the  shadowy 
memories  which  induced,  or  might  have  induced,  the 
legislator  to  vote  for  the  adoption  of  the  "  omnibus 


l6o  THE    GEOGRAPHY  OF  MARRIAGE. 

clause,"  for  it  provides  in  express  terms  for  cases 
falling  within  any  state  of  facts  whicli  may  be  pre- 
sumed to  be  "  mthin  tbe  general  mischief  the  law 
was  intended  to  remedy."  But  the  latitude  of  the 
statute  is  not  confined  even  to  this  vague  boundary. 
It  covers,  also,  any  case  presenting  a  state  of  facts 
falling  'Svithin  what  it  may  be  presumed  woiddliave 
been  provided  against  by  the  legislature  "  establish- 
ing the  "  omnibus  clause,"  had  the  legislature  been 
possessed  with  a  sufficient  amount  of  prescience  to 
have  "  foreseen  the  specific  case  and  found  language 
to  meet  it."  It  will  be  impossible  to  appreciate  this 
wonderful  piece  of  legislation  without  reproducing 
it.  It  constituted  the  seventh  ground  of  divorce, 
and  certainly  involves  all  the  mystery  and  weird 
extravagance  which  attaches  to  that  cabalistic  num- 
ber.    It  is  as  follows  : 

"  Seventh. — And  whereas,  in  the  development  of 
future  events,  cases  may  be  presented  before  the 
courts  falling  substantially  within  the  limits  of  the 
law,  as  hereinbefoi'e  stated,  yet  not  within  its  terms, 
it  is  enacted  that  whenever  the  Judge  who  hears  a 
cause  for  divorce,  deems  the  case  to  be  within  the 
reason  of  the  law,  within  the  general  mischief  the 
law  is  intended  to  remedy,  or  within  what  it  may  be 
presumed  would  have  been  provided  against  by  the 
legislature  establishing  the  foregoing  causes  of  di- 
voi'ce  had  it  foreseen  the  s[)eclfic  case,  and  found 
language  to  meet  it,  without  including  cases  not 
within  the  same  reason,  he  shall  grant  the  divorce." 

The  "omnil)Us  clauses  "  now  in  force  in  the  States 


DIVORCE.  i6r 

above  referred  to  are  eoiiclied  in  siicli  vao;iie  and 
uncertain  terms  as  to  fit  almost  any  state  of  facts, 
where  it  appears  tliat  tlie  conjugal  relation  is  no 
longer  pleasant  to  one  or  both  of  the  parties,  or 
where  they  have  allowed  themselves  to  drift  apart, 
perhaps  with  a  view  to  dissolving  the  sacred  tie  of 
marriage,  so  that  new  alliances  might  be  sought. 
Whenever  '^  life  becomes  a  burden,"  or  the  behavior 
of  the  parties  towards  each  other  is  such  as  to 
render  "  living  together  insupportable,"  or  renders 
"his  or  her  condition  intolerable,"  a  cause  for  di- 
vorce exists  in  Missouri,  Oregon,  (Pennsylvania, 
cause  for  a  limited  divorce  only),  Texas,  and  Wash- 
ington. In  the  last-named  locality  the  people  are 
now  engaged  in  forming  a  State  constitution.  It 
might  be  well  to  limit  or  modify  these  loose  provi- 
sions on  entering  the  Federal  Union.  In  Montana, 
where  the  people  are  likewise  formulating  their 
State  constitution,  absence  without  cause  for  a  yeai*, 
or  absence  of  husband  from  the  territory  without 
intention  of  returning,  is  sufficient  to  authorize  a 
divorce.  What  could  be  simpler,  where  the  parties 
desire  to  throw  off  their  vows  and  obligations,  than 
for  the  husband  to  leave  Montana,  and  indicate  to 
his  friends  that  he  does  not  intend  ever  to  return  ? 
In  New  Mexico,  abandonment  is  a  sufficient  gi'ound. 
In  Rhode  Island  the  marriage  may  be  dissolved  for 
"any  gross  misbehavior  or  wickedness  in  either  of 
the  parties  repugnant  to,  and  in  violation  of,  the 
marriage  contract."     In  Vermont  "  intolerable  sevei'i- 


1 62  THE    GEOGRAPHY  OF  MARRIAGE. 

ty"  is  sufficient.  lu  Florida  "habitual  indulgence 
of  violent  and  ungovernable  temper  "  will  afford  tlie 
necessary  grounds  for  dissolving  the  matrimonial 
union.  The  field  for  collusion  under  these  various 
provisions  upon  this  vdtal  and  important  branch  of 
the  law  governing  wedlock  is  apparent,  and  needs 
no  further  discussion  or  comment. 

The  great  cosmopolitan  population  of  which  the 
American  States  are  composed  include  men  holding 
every  shade  of  opinion  and  every  kind  of  doctrine 
with  respect  to  this  subject.  Some  believe  that 
divorce,  for  any  cause,  is  immoral  and  wrong.  Others 
as  conscientiously  affirm  that  divorce  ought  to  be 
decreed  on  the  ground  of  adultery  only.  Yet  others 
think  that  marriage  should  be  dissolved  for  desertion, 
drunkenness,  cruel  and  inhuman  treatment,  conviction 
for  infamous  crime,  or  similar  causes.  Some  contend 
that  where  a  couple  are  divorced  for  adultery,  the 
guilty  party  ought  to  be  punished,  and  should  never 
be  allowed  to  marry  while  the  innocent  party  lives. 
On  the  other  hand,  there  are  those  who  regard  such 
a  prohibition  as  not  only  unjust  and  vindictive,  but 
as  morally  wrong. 

The  result  of  these  various  opinions  are  reflected 
in  the  variety  of  laws  at  present  governing  the  sub- 
ject throughout  the  country.  But  the  chief  difficulty 
arising  from  this  mass  of  incongruous  legislation  is 
not  the  variety  or  number  of  causes  for  which  a 
divorce  may  ]je  granted.  Tlie  greatest  danger  ex- 
ists by  reason  of  the  ease  with  which  the  law  may 


DIVORCE.  163 

be  set  in  motion,  and  the  results  which  follow  the 
granting  of  the  divorce.  These  evils  may  be 
grouped  under  two  heads :  first,  with  respect  to 
divorces  against  non-residents,  procured  by  publi- 
cation without  actual  notice  to  the  defendant. 
Under  cover  of  such  provisions  it  is  possible  to  pro- 
cure a  divorce,  not  only  without  publicity,  but  with 
absolute  secrecy.  Parties  are  also  enabled  thereby 
to  obtain  a  divorce  easily  by  collusion.  Practically, 
such  provisions  may  be  said  to  make  divorce  free. 
Second,  with  respect  to  the  disabilities  imposed 
upon  the  guilty  party,  by  way  of  punishment, 
^vhereby  he  is  forbidden  to  marry.  Such  prohibi- 
tions, as  has  been  shown,  can  have  no  force  or  oper- 
ation beyond  the  territorial  limits  of  the  State  in 
which  they  are  imposed,  and  can  be  evaded  and 
overcome  by  the  guilty  party  by  simply  going  into 
another  State  to  marry.  Hence  they  are  practically 
a  dead  letter. 

It  is  nevertheless  true  that  in  some  States  the 
guilty  party  is  bound  to  continue  to  pay  alimony  as 
long  as  the  innocent  party  lives ;  and  in  this  way 
only  can  the  punishment  sought  to  be  inflicted 
become  effectual.  So  far  as  the  prohibition  which, 
forbids  the  guilty  party  to  marry  is  concerned,  it 
might  as  well  be  dispensed  with  altogether,  and 
the  punishment  confined  to  payment  of  alimony. 

It  is  reasonable  to  suppose  that  an  effort  to  abolish 
altogether  divorces  against  non-residents,  or  at  least 
the  granting  of  divorces  by  default,  and  confining 


164  THE    GEOGRAPHY  OF  MARRIAGE. 

the  punishment  of  the  guilty  defendant  to  payment 
of  alimony,  a  remedy  which  can  be  enforced  any- 
where, might  be  agreed  to,  and  uniformity  of  the 
laws  of  the  States  in  these  respects  might  be  secured. 

Another  very  senous  embarrassment  resulting 
from  the  granting  of  divoi'ces  against  non-residents, 
who  are  served  by  publication,  and  never  appear  in 
the  action,  arises  from  the  fact  that  the  parties  to 
such  suits  are  often  placed  in  the  anomalous  position 
of  being  divorced  in  the  State  granting  such  a 
divorce,  while  yet  remaining  married  in  every  other 
State  where  the  courts  refuse  to  recognize  such  a 
decree  as  valid.  This  result  must  arise  of  necessity 
when  an  attempt  is  made  to  procure  a  judgment 
against  a  defendant  who  is  absent  from  the  State,  so 
long  as  each  State,  with  respect  to  these  matters,  is 
sovereiorn  within  its  borders.  It  is  true  that  the  Con- 
stitution  of  the  United  States  provides  that  full  faith 
and  credit  shall  be  given  in  each  State  to  judgments  in 
every  other  State.  But  what  is  a  "  judgment "  ?  It  has 
been  declared  upon  high  authority  that  in  no  State 
can  a  court  make  a  judgment,  in  matrimonial  contro- 
versies, which  will  be  binding  in  another,  unless  the 
court  acted  with  both  husband  and  wife  before  it. 
It  follows  that  if  one  of  the  parties  was  not  in  the 
State  while  the  suit  was  pending,  the  judgment  of 
divorce  has  no  binding  force,  so  far  as  the  absent 
party  is  concerned.  In  other  words,  it  is  no  "judg- 
ment," within  the  meaning  of  the  Constitution. 

A  very  striking  illustration  of  this  fact  is  presented 


DIVORCE.  165 

in  a  case  wbere  the  wife  went  to  Ohio,  and  com- 
menced suit  for  a  divorce.  The  husband  was  not  in 
Ohio  at  any  time  while  the  suit  was  pending.  The 
court  granted  the  divorce  against  the  absent  hus- 
band. He,  supposing  that  the  Ohio  judgment  dis- 
solved the  marriage,  and  freed  him  from  its  obligation, 
married  again,  and  lived  with  his  new  bride  in  the 
State  of  New  York,  where  he  continued  in  blissful 
ignorance  of  his  domestic  status,  until  he  was  rudely 
awakened  from  his  connubial  dream  by  the  grand  jury, 
by  whom  he  was  indicted  for  bigamy,  and  for  this 
crime  he  was  convicted,  for  the  reason  that  the  Ohio 
divorce  was  of  no  bindino;  force  in  the  State  of  New 
York,  because  the  Ohio  court  acted  in  his  absence, 
and  therefore  could  not  bind  him  by  its  so-called  judg- 
ment. The  New  York  court  declared  that  it  would 
give  full  faith  and  credit  to  a  judgment  obtained  in 
another  State.  But  in  order  to  constitute  a  judgment, 
the  decree  must  have  been  rendered  against  a  person 
who  was  represented  and  appeared  before  the  court, 
and  that  proceedings  against  a  person  w^ho  was  not 
in  the  State,  and  who  never  was  before  the  court,  so 
far  as  the  absent  party  was  concerned,  was  not  a 
judgment  at  all,  and  was  of  no  more  value  as  a 
judicial  decree  than  if  the  paper  containing  it  were 
blank  pages. 

This  rule,  recognized  by  the  Court  of  Appeals  of 
the  State  of  New  York,  that  a  judgment  of  divorce 
obtained  in  another  State,  against  an  absentee,  who 
never  was  personally  served,  and  never  appeared  in 


1 66  THE    GEOGRAPHY  OF  MARRIAGE. 

the  case,  is  indirectly  recognized  in  the  divorce  laws 
of  Florida,  Michigan,  and  Ohio.  Those  States  de- 
clare that  where  a  person  procures  a  divorce  in  some 
other  State,  the  fact  of  procuring  such  a  divorce  will 
constitute  a  valid  ground  for  divorce  in  either  of  the 
States  named.  Now  i-everse  the  case  just  referred 
to.  Suppose,  instead  of  the  wife  going  from  New 
Yoi'k,  Avhere  the  husband  continued  to  reside,  and 
procuring  a  divorce  in  Ohio,  she  had  simply  lived 
there  until  her  husband  had  procured  a  divorce 
from  her  in  New  York,  and  served  her  by  publica- 
tion pursuant  to  the  laws  of  New  York.  True  the 
New  York  divorce  might  have  had  no  validity  in  Ohio, 
but  the  fact  that  the  husband  had  obtained  a  divorce 
in  New  York  would  have  been  sufficient  ground  for 
a  divorce  in  Ohio.  This  rule,  however,  instead  of 
remedying  the  evil,  serves  only  to  confuse  and  com- 
plicate matters,  as  it  affords  opportunity  for  creating 
two  worthless  divorces,  good  only  in  the  States 
where  obtained,  where  but  one  previously  existed. 

Illustrations  of  the  unfortunate  results  of  granting 
divorces  against  non-residents  served  by  publication, 
where  defendant  never  received,  and  was  not  in- 
tended ever  to  receive,  any  notice  of  the  suit;  or 
where  there  is  no  provision  of  law  whereby  the 
State  can  be  represented  in  the  action,  might  be 
multiplied.  Other  phases  of  this  branch  of  the 
inquiry  will  be  found  in  the  chapter  concerning 
matrimonial  entanglements,  foreign  divorces,  and 
marriage  of  divorced  persons. 


[ 


DIVORCE.  167 

As  tlie  object  of  abolishing  divorces  against  non- 
residents, or  where  the  defendant  does  not  appear,  is 
to  prevent  fraud  and  collusion,  the  inquiry  may  be 
pertinent,  how  can  a  default  be  prevented  ?  The 
law  cannot  compel  the  defendant  to  come  into 
court,  or  to  appear  in  the  action.  AVhile  it  is  true 
that  an  absentee  or  even  a  resident  cannot  be  re- 
quired to  appear,  the  attorney-general  or  public 
prosecutor  of  the  county,  might,  with  propriety,  be 
required  to  be  made  a  party  in  every  divorce  case, 
in  order  to  represent  the  State,  which  is  largely 
interested  whenever  a  marriao-e  is  to  be  dissolved. 
Divorce,  as  has  been  said,  means  the  disintegration 
of  the  home  and  the  family.  Upon  these  the  State 
must  rest,  and  without  them  it  cannot  flourish. 

This  princi^^le  is  recognized  not  only  in  Great 
Britain,  but  also  in  four  American  States — namely, 
Georgia,  Indiana,  Kentucky,  and  Vermont.  In  Eng- 
land it  is  the  duty  of  the  queen's  proctor  to  investigate 
all  matrimonial  controversies,  while  in  Scotland  this 
duty  is  performed  by  the  lord  advocate.  The  law 
of  Kentucky  declares  that  "it  shall  be  the  duty 
of  the  attorney  for  the  county  to  resist  every  appli- 
cation for  a  divorce,  and  if  successful  in  defeating  it 
he  shall  be  allowed  a  fee  of  not  exceeding  twenty 
dollars,  to  be  paid  by  the  husband,  which  he  maybe 
compelled  to  pay  by  attachment."  In  Indiana  the 
rule  is  that  "  whenever  a  petition  for  divorce 
remains  undefended,  it  shall  be  the  duty  of  the 
prosecuting    attorney    to    appear    and  resist   such 


I68  THE  GEOGRAPHY  OF  MARRIAGE. 

petition."  The  law  of  Georgia  declares  that  it  shall 
be  the  duty  of  the  judge  to  see  that  the  grounds  for 
a  divorce  are  legal,  and  sustained  by  proof,  or 
to  appoint  the  solicitor-general  or  some  other 
attorney  of  the  court  to  discharge  that  duty  for 
him.  The  Georgia  rule  is  similar  to  that  of  New 
York,  and  a  number  of  other  States,  where  in  case  of 
default  the  court  will  appoint  a  referee  to  take  the 
proof  and  look  into  the  facts.  But  it  is  not  the  duty 
of  the  referee  in  New  York,  or  in  the  States  where 
that  officer  simply  takes  the  proofs,  to  resist  the 
application  for  divorce,  as  in  Kentucky  and  Indiana. 
In  the  last  named  States  the  public  prosecutor  repre- 
sents the  people,  and  it  is  his  duty  to  take  care  that 
no  divorce  is  granted  unless  the  party  is  entitled  to 
it,  and  that  no  collusion  or  connivance  is  practised. 

Another  mode  of  preventing  collusion,  and  making 
it  difficult  to  obtain  a  divorce,  would  be  to  make 
every  divorce  case  public,  and  require  the  issues  to 
be  tried  before  a  jmy.  Secrecy  in  any  kind  of 
litigation  is  at  war  with  the  spirit  of  our  institutions 
and  our  laws  ;  and  secrecy  in  divorce  trials  can  work 
good  to  no  one,  and  may  operate  to  encourage  rather 
than  diminish  the  evil.  Rufus  Choate,  one  of  the 
ablest  advocates  who  ever  addressed  a  jury,  empha- 
sized this  truth,  in  the  course  of  his  defence  in  behalf 
of  Helen  Maria  Dalton,  in  the  famous  Dalton  divorce 
case,  tried  some  years  ago  in  Boston,  when  he  said  : 
"  Our  habits  are  for  public  trial  and  investigation, 
and  our  liberties  will  last  just  as  long  as  our  trials 


DIVORCE.  169 

are  public,  and  not  a  moment  longer.  We  agree  in 
that ;  Ave  liave  this  love  of  a  public  trial  from  our 
ancestors.  Wlio  does  not  remember  a  remarkable 
case  a  few  years  ago,  when  her  Majesty,  the  Queen 
of  England,  was  arraigned  before  the  House  of  Lords, 
on  a  charge,  and  assailed  by  a  body  of  trash  com- 
pared to  which  the  evidence  of  Mrs.  Coburn  is  as 
innocent  as  one  of  Dr.  Watts'  psalms  or  hymns.  And 
here  I  would  like  to  ask  your  Honor  and  this  public, 
whether  or  not,  if  it  had  been  proposed  to  try  that 
cause  under  lock  and  key  at  a  long  table  covered 
with  baize  and  by  lamp-light,  the  people  of  England 
would  have  borne  it?  They  would  have  thrown 
every  lord  and  bishop  into  the  river,  and  piled 
the  stones  of  the  parliament  house  on  their  heads ; 
but  they  would  have  seen  that  trial  and  heard  that 
trial.  Do  you  think  that  was  for  the  love  of  offensive 
exhibitions,  gentlemen  ?  I  have  the  honor  to  believe, 
for  the  country  of  my  descent  and  yours,  that  was 
the  old  English  love  of  fair  play." 

Acting  upon  this  principle,  which  ignores  prudish 
affectation,  the  law  of  Georgia  requires  not  only  one 
juiy  trial  in  this  class  of  actions,  but  two.  It  is 
there  enacted  that  "  no  total  divorce  shall  be  granted 
except  on  concurrent  verdicts  of  two  juries,  at 
different  terms  of  the  court."  In  Missouri,  how- 
ever, jury  trials  in  divorce  cases  are  not  allowed.  In 
New  York  and  many  other  States,  they  cannot  be 
had  as  matter  of  right,  but  only  by  leave  of  the 
court,  which  may,  in  its  discretion,  frame  issues  to  be 


I/O  THE    GEOGRAPHY  OF  MARRIAGE. 

tried  by  a  jury  ;  though  the  court,  in  passing  finally 
upon  the  merits  of  the  case,  is  not  bound  by  the 
verdict  which  the  jury  may  have  rendered. 

The  expediency  of  these  reforms  may  be  briefly 
considered.  Opposition  to  any  effort  to  abolish 
divorces  against  non-residents,  and  to  require  the 
State,  through  its  attorney-general  or  ]3ublic  prose- 
cutor, to  be  made  a  party  to  every  divorce  case 
may  reasonably  be  expected  from  those  who  are 
altogether  indifferent  to  the  welfare  of  society 
and  the  moral  side  of  life,  and  who  have  no  con- 
cern beyond  selfish  interests.  Those  who  have  lit- 
tle respect  for  the  sanctity  of  marriage,  and  believe 
that  divorce  should  be  free,  will  vigorously  object  to 
any  reform  which  throws  about  it  safeguards  or 
limitations  of  any  sort.  But  as  divorce  is  a  necessary 
evil,  and  cases  do  exist  where  it  might  be  a  wise  and 
merciful  dispensation  to  sever  the  nuptial  bond, 
what  objection  can  be  made  to  the  State  giving  its 
sanction  to  the  dissolution,  through  its  official  repre- 
sentative. The  only  object  of  his  presence  should 
be,  on  the  one  hand,  to  prevent  collusion  and  fraud, 
whereby  the  law  may  be  cheated  ;  and,  on  the  other 
Land,  to  see  that  the  interests  of  parties,  honestly 
entitled  to  a  divorce,  may  be  protected,  and  their 
rights  secured  and  vigorously  enforced. 

But  a  different  cpiestion  is  presented  when  it  is 
proposed  to  abolish  all  restrictions,  which  prevent  a 
guilty  party,  after  a  reasonable  time,  to  marry 
again  ;  and  to  confine  whatever  punishment  may  be 


DIVORCE.  171 

deemed  requisite  to  a  money  liability,  secured  to  the 
injured  party.  Many  sincere  and  good  citizens  may 
here  interpose  objections,  based  altogether  on  moral 
grounds.  So  long  as  the  power  to  legislate  upon 
the  subject  of  divorce  is  not  surrendered  to  the 
federal  government,  and  it  is  scarcely  possible  that 
it  ever  will  be,  these  prohibitions,  which  forbid  the 
marriage  of  the  guilty  party,  will  remain  practically 
a  dead  letter,  so  long  as  there  are  States  where  such 
persons  may  lawfully  wed. 

If  reform  is  the  object  of  the  law,  and  not  punish- 
ment, a  second  marriage  in  many  cases  might  be 
the'  most  available  and  surest  means  of  bringing  it 
about.  Depriving  the  individual  of  an  opportunity 
to  live  in  lawful  wedlock  would  have  no  tendency, 
directly  or  indirectly,  towards  a  reform  in  morals. 
Take  away  the  hope  of  legitimate  domestic  happi- 
ness, and  what  opportunity  is  there  for  reform  ? 
Indeed,  there  are  many  who  conscientiously  believe 
that  it  is  altogether  wrong  to  attempt  to  enforce 
such  a  prohibition,  and  who  regard  legislation  Avhich 
prevents  the  marriage  of  a  divorced  person  as  tyran- 
nical. The  little  linger  of  the  law  is  stronger  than 
the  loins  of  a  giant.  The  law  is  strong  enough  to 
disinherit,  and  can  thereby  render  ineffectual,  so  far 
as  property  rights  are  concerned,  such  second  mar- 
riage. The  maxim,  "  It  is  excellent  to  have  a  giant's 
strength,  but  it  is  tyrannous  to  use  it  as  a  giant,"  is 
applicable  here.  These  observations  foreshadow  the 
result  of  a  uniform  divorce  law,  operating  through- 


1/2  THE    GEOGRAPHY  OF  MARRIAGE. 

out  the  country,  if  it  were  made  to  contain  such  a 
prohibition  as  to  the  marriage  of  divorced  persons 
which  would  be  binding  everywhere.  Under  such 
circumstances  the  opportunities  would  no  longer  be 
open  to  an  unfortunate  defendant,  who,  following 
the  impulse  of  his  nature,  sought  to  retrieve  the 
past  and  begin  again,  determined  henceforth  to  lead 
a  moral  and  upright  life.  The  only  recourse  left 
would  be  to  cross  the  seas  and  go  abroad  in  order 
to  carry  out  this  pious  resolve.  Even  this  last  hope 
might  present  obstacles  which  it  would  be  impossible 
to  overcome. 

In  view  of  the  fact  that  such  a  wide  difference  of 
opinion  exists  upon  the  matters  under  discussion,  it 
is  extremely  doubtful  whether  two  thirds  of  the 
States  will  ever  agree  to  surrender  the  right  to  legis- 
late upon  the  subject  of  marriage  and  divorce  to  the 
federal  government.  But  the  remedy  may  be  ac- 
complished without  surrendering  such  right,  in  the 
mode  discussed  in  the  following  chapters  which  treat 
generally  of  the  remedy. 

The  law  of  divorce  however,  presents  many  evils  for 
which  it  is  impossible  to  find  a  remedy.  But  as  noth- 
ing is  perfect  in  this  world,  teachers  and  moralists 
have  long  ago  ceased  to  expect  absolute  perfection. 
It  is  impossible  to  create  virtue  by  legislation.  As 
has  been  said  by  the  Reverend  Robert  Hall,  the  distin- 
guished London  divine :  "  Laws  will  not  be  obeyed  ; 
harmony  in  society  cannot  be  maintained  without 
virtue ;  and  virtue  cannot  subsist  without  religion." 


DIVORCE.  173 

Many  of  tliese  evils,  however,  can  be  prevented, 
or  diminished,  if  not  cured  altogether.  There  re- 
mains to  be  mentioned  one  other  phase  of  our  divorce 
laws.  In  some  States  there  is  but  one  kind  of  di- 
vorce, which  operates  to  sever  absolutely  the  mar- 
riage tie ;  in  other  States  two  kinds  of  divorce  are 
recognized  :  one  which  dissolves  the  marriage  rela- 
tion ;  the  other  which  fixes  the  property  rights  of  the 
parties,  and  separates  them  forever,  leaving  them 
still  man  and  wife.  This  mongrel  compromise  is 
termed  a  divorce  ''  from  bed  and  board,"  or  a  limited 
divorce.  Some  writers  delio-ht  to  show  their  utter 
contempt  for  these  partial  divorces,  which  they 
regard  as  a  miserable  makeshift,  which  leaves  the 
parties  neither  one  status  nor  another,  occu23ying  an 
anomalous  position  in  which  they  are  neither  mar- 
ried nor  divorced,  wholly  incapable  of  contracting 
new  alliances — a  grass  widow  and  grass  widower, 
sentenced  as  such  for  life.  They  aigue  that  when  a 
divorce  is  granted,  and  the  marriage  is  dissolved,  the 
condition  and  status  of  the  parties  are  fixed  and 
clearly  defined.  There  are  cases,  however,  where,  in 
some  States,  the  conduct  of  the  parties  is  such  that 
they  think  they  cannot  live  together,  and  yet  neither 
has  been  guilty  of  any  act  which  authorizes  a  divorce. 
There  is  nothing  to  prevent  them  from  living  apart  if 
they  miitually  agree  to  do  so.  But  if  such  separations 
are  not  expressly  sanctioned  by  law,  it  is  supposed 
the  parties  might  be  more  apt  to  become  reconciled 
and  live  together  agreeably  to  the  bridal  vow. 


174  THE    GEOGRAPHY  OF  MARRIAGE. 

Nevertheless,  there  ought  to  be  some  provision  of 
law,  whereby  an  injured  wife,  who  is  unable  to  se- 
cure the  evidence  necessary  to  procure  the  divorce 
to  which  she  may  be  entitled,  may  compel  the  hus- 
band to  support  her  and  her  children  away  from 
him,  where  it  can  be  sho^vn  that  his  conduct  is  such 
as  to  render  life  a  burden,  and  makes  it  impossible 
for  both  to  live  under  the  same  roof. 

The  number  of  States,  however,  in  which  these 
partial  divorces  or  separations  are  sanctioned  are 
gradually  diminishing,  until  there  remain  but  sixteen 
in  which  they  are  authorized,  namely:  Alabama, 
Delaware,  Georgia,  Louisiana,  Maryland,  Minnesota, 
Nebraska,  New  Jersey,  New  York,  North  Carolina, 
Pennsylvania,  Rhode  Island,  Tennessee,  Virginia, 
West  Virginia,  and  Wisconsin.  In  the  majority  of 
these  States  a  separation  will  be  granted  for  aban- 
donment, drunkenness,  cruel  and  inhuman  treatment, 
and  like  delinquencies,  while  divorce  absolute  will 
be  deci'eed  only  upon  the  ground  of  adultery.  In  a 
few  States,  however,  the  complainant  may  apply 
either  for  a  divorce  or  a  separation,  the  grounds 
being  identical  to  secure  the  one  or  the  other. 

Some  of  the  absurd  complications  constantly 
arising  by  reason  of  the  conflict  of  laws  governing 
the  marital  relations,  are  cleverly  illustrated  by  Mr. 
Waldorf  H.  Phillips,  in  his  entertaining  satii-e  en- 
titled "  Who  is  Your  Wife  '{ " 


CHAPTER  XX. 

THE  EEMEDY OBJECTIONS  TO  A  NATIONAL  LAW. 


"  No  law  perfectly  suits  the  convenience  of  every  member  of  the  com- 
munity ;  the  only  consideration  is,  whether,  upon  the  whole,  it  is  profitable 
to  the  greater  part." — LiVY 


The  cure  for  tlie  evils  growing  out  of  the  existence 
of  many  systems  of  marriage  and  divorce,  so  far  as  it 
can  be  accomplished  by  mere  human  agency,  is  a  uni- 
form law.  But  how  shall  this  remedy  be  secured  ? 
It  has  been  suggested  in  some  quarters  that  uniform 
legislation  must,  of  necessity,  be  federal  legislation. 
This  can  be  effected  only  by  an  amendment  to  the 
federal  constitution,  whereby  the  States  must  sur- 
render the  power  to  legislate  upon  the  subject  by 
conferring  it  upon  Congress.  Doubtless  the  great 
majority  of  the  people  of  the  United  States,  who 
have  given  any  thought  to  the  matter,  desire  uniform 
legislation  with  respect  to  marriage  and  divorce. 
But  if  the  only  mode  of  securing  this  object  is  by  a 
surrender  by  the  States  of  their  power  to  the  federal 
government,  it  is  reasonable  to  suppose  that  it  will 
never  be  secured.  Many  learned  and  distinguished 
men  and  women  have  discussed  this  question. 
Thus  far  the  advocates  of  a  uniform  law  seem  to  be 

1/5 


176  THE   GEOGRAPHY  OF  MARRIAGE. 

divided  into  two  classes :  first,  those  who  favor  an 
amendment  to  the  federal  constitution,  giving  the 
power  to  legislate  upon  the  subject  to  Congress ; 
second,  those  who  advocate  concert  of  action  among 
the  States.  These  two  classes  may,  for  convenience, 
be  designated  as  those  who  desire  a  national  law,  and 
those  who  favor  voluntary  unification  by  the  States. 
The  object  of  both  is  a  uniform  law.  Indeed  the  best 
interests  of  the  country  demand  it.  A  harmonious 
system  governing  the  matrimonial  I'elations  is  es- 
sential to  the  welfare  of  our  republic,  representing 
the  greatest  nation  and  the  most  'ingenious  people 
on  the  globe.  Such  a  system  is  everywhere  advo- 
cated by  the  most  highly  esteemed  and  intelligent 
portions  of  the  community.  There  is  no  room  for 
argument  as  to  the  necessity  of  uniform  legislation. 
The  only  question  which  invites  serious  discussion  is, 
as  to  the  best  means  of  securing  this  paramount 
object. 

If  we  are  to  have  a  national  law,  to  supersede  the 
laws  of  the  various  States,  the  constitution  of  the 
United  States  must  be  amended,  and  this  can  be 
done  only  with  the  consent  of  two  thirds  of  the 
States.  Is  it  possible  to  secure  this  consent  ?  The 
proposition,  however  laudable,  benevolent,  or  bene- 
ficial it  may  be,  nevertheless  requires  the  States  to 
surrender  their  sovereignty  to  the  federal  govern- 
ment. The  opposition  to  such  a  scheme  will  be 
bitter  and  protracted.  It  will  operate  to  postpone  a 
reform,  which  all  admit  is  a  pressing  necessity,  and 


THE  REMEDY.  •      1 7/ 

will  arouse  opposition  wliicli  may  defeat  it  alto- 
gether. Beneath  this  benevolent  and  laudable  pro- 
posal to  secure  a  great  moral  reform,  what  ambitious 
schemes  may  lurk  !  What  more  subtle  or  ingen- 
ious design  could  be  devised  to  cover  plans  seeking 
to  cripple  or  destroy  the  sovereignty  remaining  in 
the  States  by  conferring  greater  powers  on  the  fed- 
eral government  ? 

When  some  of  the  objections  to  the  plan  which 
requires  a  grant  of  power  to  Congress  to  the  exclu- 
sion of  the  States  are  considered,  they  become  for- 
midable indeed,  and  appear  to  be  insuperable. 

It  is  apparent  that  the  bestowal  of  more  power 
upon  Congress  makes  the  general  government 
stronger  and  the  States  weaker.  The  structure 
reared  by  American  statesmanship)  was  designed  to 
be  an  indestructible  union  of  indestructible  States. 
How  much  power  will  the  constitutional  amend- 
ments already  suggested,  of  necessity,  subtract  from 
the  States  %  In  the  Senate  of  the  United  States  an 
amendment  has  been  offered  with  a  view  to  have 
that  body,  in  conjunction  with  the  House  of  Kepre- 
sentatives,  by  joint  resolution,  present  the  matter  for 
the  consideration  of  the  States.  It  was  in  the  fol- 
lowing language : 

"  Congress  shall  have  power  to  legislate  on  the 
subject  of  marriage  and  divorce  by  general  laws, 
applicable  alike  to  all  the  States  and  Territories ; 
and  neither  bigamy  nor  polygamy  shall  exist  or  be 
permitted  within  the  United  States  or  any  place 
subject  to  their  jurisdiction." 


178    *  THE    GEOGRAPHY   OF  MARRIAGE. 

It  is  the  first  part  of  this  proposed  amendment 
that  will  arouse  opposition,  by  reason  of  the  grant 
of  power  involved.  A  brief  and  comprehensive 
amendment  has  been  suggested  in  the  House  of 
Kepresentatives,  couched  in  the  following  terms  : 

''  The  Congress  shall  have  power  to  make  a  uni- 
form law  of  marria2:e  and  divorce." 

The  same  objection  will  be  urged  against  this  pro- 
posed amendment,  in  view  solely  of  the  grant  of 
power  involved.  What  power  would  the  States 
lose  should  amendments  of  the  character  suggested 
be  adopted  ?  This  is  the  vital  question.  It  might 
seem,  at  first  blush,  that  the  innovation  upon  the 
sovereignty  of  the  States  would  be  inconsiderable, 
when  it  is  j)roposed  only  to  take  away  the  authority 
to  prescribe  the  mode  of  consummating  the  nuptial 
bond  and  dissolving  the  marriage  tie.  The  powers 
involved  in  this  matter  are  not  confined  to  the  mere 
ceremony  of  the  marriage,  and  do  not  end  with  the 
decree  of  divorce.  They  embrace  the  whole  range 
of  domestic  life,  involving  the  family  relations. 
They  extend  to  the  powers  exercised  by  a  court  of 
chancery  with  regard  to  guardianship  of  minors,  and 
the  custody,  maintenance,  and  education  of  children. 
They  extend  to  the  distribution  and  division  of  the 
property,  real  and  personal,  belonging  to  the  hus- 
band or  wife,  or  to  which  the  children  may  be  enti- 
tled, under  the  ]irovisions  of  a  will,  or  by  right  of 
descent  or  inheritance,  in  case  there  is  no  will.    They 


THE  REMEDY.  -      179 

involve  questions  of  legitimacy.  When  the  student 
takes  up  his  law-book  and  refers  to  the  separate 
heads  under  which  these  matters  are  familiarly 
classed  by  text-^vriters  on  the  subject  of  jurispru- 
dence, he  will  comprehend  the  vast  extent  of  power 
which  they  cover. 

Take  away  from  the  State  courts  jurisdiction  in 
all  matters  relating  to  the  subject  of  "  husband  and 
wife,"  of  "  parent  and  child,"  of  "  guardian  and 
ward,"  of  "  dower  and  curtesy,"  questions  of  legiti- 
macy, in  so  far  as  they  involve  "  the  law  of  descent," 
and  "  the  law  of  distribution,"  also  the  law  of  "  pro- 
cedure in  matrimonial  actions,"  and  "  evidence  in 
matrimonial  causes,"  and  what  remains  of  the  power 
and  sovereignty  of  the  State  ?  The  federal  govern- 
ment can  never  assume  jurisdiction  of  marriage  and 
divorce,  in  the  slightest  degree,  without  eventually 
absorbing  all  the  powers  incidental  to  the  subject. 
Sooner  or  later  the  State  courts  would  be  stripped 
of  jurisdiction,  and  State  lines  would  disappear  in 
the  settlement  of  controversies  between  husband  and 
wife,  arising  in  the  field  of  jurisprudence  with  respect 
to  domestic  relations.  The  presence  of  a  United 
States  marshal  or  other  federal  officer  in  administer- 
ing a  federal  statute  governing  marital  rights  and 
obligations,  acting  independently  of  the  domicile  of 
the  parties,  or  the  States  in  which  they  reside,  would 
involve  complications,  perhaps  more  serious  and 
aggravating  than  any  at  present  existing  under  con- 
flicting State  laws. 


l80  THE    GEOGRAPHY     OF  MARRIAGE. 

There  is  and  there  can  be  no  positive  assurance  as 
to  what  sort  of  a  law  Congress  may  be  pleased  to 
enact  on  this  very  important  subject.  It  already  has 
full  po\\'er  and  authority  to  pass  a  uniform  law  as  to 
marriage  and  divorce,  which  will  be  binding  and 
operative  in  the  Territories  of  the  United  States  and 
in  the  District  of  Columbia.  What  specimens  of 
legislation  have  resulted  from  the  exercise  of  this 
power  ?  It  is  true  an  anti-polygamy  law  has  been 
passed  with  respect  to  the  Territory  of  Utah.  How 
has  it  been  enforced  ?  Some  of  the  most  objection- 
able laws  in  the  country  on  this  subject,  exist  in  the 
Territories,  and  are  at  least  permitted,  if  not  expressly 
authorized,  by  Congress. 

It  may  be  suggested  that  Congress  have  power  to 
pass  a  uniform  law,  but  that  its  execution  be  conferred 
exclusively  upon  the  State  courts.  This  result  can- 
not be  secured  under  either  of  the  amendments  thus 
far  suggested.  It  would  require  the  insertion  of  an  ad- 
ditional clause,  which  would  destroy  their  object  and 
spirit.  Su^^pose  the  clause  were  inserted  so  that  the 
amendment  would  read :  The  Congress  shall  have 
power  to  make  a  uniform  law  of  marriage  and  di- 
vorce, but  the  power  to  administer  such  law  shall  be 
forever  exercised  by  the  courts  of  the  several  States, 
exclusive  of  the  federal  courts.  This  would  create 
an  anomaly  in  legislation  which  it  might  be  dangerous 
to  attempt,  and  which  might  lead  to  graver  and  more 
serious  embarrassments  than  any  thus  far  suggested. 

In  view  of  the  objections,  therefore,  which  may  be 


THE  REMEDY.  l8l 

urged  to  a  grant  of  power  over  tliis  subject  to  the 
federal  government,  it  is  extremely  doubtful  whether 
the  23lan  would  ever  succeed. 

The  suo-o;estion  that  the  federal  courts  shall  not 
exercise  exclusive  jurisdiction  in  matters  matrimonial, 
but  that  their  jurisdiction  shall  be  exercised  concur- 
rently with  the  State  courts,  will  not  help  the  matter. 
If  Congress  have  the  power,  that  ends  the  matter,  so 
far  as  the  States  are  concerned.  True,  the  federal 
government  may  exercise  it  in  such  a  way  that  the 
State  courts,  for  a  time  at  least,  may  be  permitted  to 
act  with  the  federal  courts  in  the  exercise  of  concur- 
rent jurisdiction.  But,  once  the  po"wer  is  taken  from 
the  States  and  lodged  in  the  Congress,  this  concur- 
rent Jurisdiction  will  remain  in  the  States,  for  such 
time  only  as  Congress  may  see  fit  to  allow  it  to  be 
so  exercised.  The  dano-er  lies  in  surrenderins;  the 
power,  in  whole  or  in  part,  to  the  federal  government. 

It  has  been  observed,  however,  that  there  are 
those  who  favor  concert  of  action  among  the  States 
to  secure  the  object  under  consideration.  This 
course  has  been  recommended  by  the  governor  of 
New  York  to  the  legislature,  at  the  opening  of  the 
session  in  1889.  If  an  amendment  could  be  secured 
to  the  constitution,  limiting  and  defining  the  powers 
of  the  States  in  this  matter,  it  is  possible  that  concert 
of  action  could  be  secured  which  would  give  to  the 
United  States  uniform  marrias^e  and  divorce  laws. 
These  remedies  are  feasible,  and  will  now  be  con- 
sidered. 


CHAPTER   XXI. 

THE    EEMEDY AN    AMEND^CENT    LIMITING    THE    POWEE 

OF    THE     STATES,    AND     CONCERT     OF     ACTION    AMONG 
THE    STATES. 


"  Let  there  be  unity  in  things  necessary,  liberty  in  things  doubtful,  charity 
in  all  things. — Melancthon." 


Some  of  the  objections  to  a  national  law  involving 
a  grant  of  power  by  the  States  to  the  general  gov- 
ernment have  been  considered.  It  has  been  shown 
that  they  are  sufficiently  formidable  to  imperil,  if  not 
to  defeat  altogether,  the  reform  sought. 

While  the  States  would  doubtless  refuse  to  grant 
power,  they  might  be  induced  to  limit  their  author- 
ity in  order  to  secure  harmony.  Indeed  many  of  the 
evals  sought  to  be  remedied  maybe  reached  by  a  con- 
stitutional prohibition  placed  upon  the  States.  These 
evils  arise  chiefly  from  legislation  authorizing  divorces 
to  be  procured  against  non-residents,  and  by  publica- 
tion ;  from  the  conflict  with  respect  to  the  prohibition 
of  divorced  persons  marrying  again,  and  from  failure 
in  one  State  to  recognize  a  marriage  which  may  be 
valid  in  another. 

The  objections  to  a  grant  of  power  cannot  be 
urged  against  a  prohibitoiy  amendment.     It  is  one 

182 


THE  REMEDY.  1 83 

thing  for  a  State  to  allow  Congress  to  exercise  a 
power  to  the  exclusion  of  the  State.  It  is  an  essen- 
tially different  matter  for  the  State  to  consent  to 
continue  to  exercise  its  power  within  clearly  de- 
fined restrictions  and  limitations.  While  the  former 
proposition  involves  a  surrender  of  power,  the  latter 
involves  no  surrender  at  all,  but  only  a  consent 
to  exercise  it  within  defined  limits.  When  the 
constitution  was  framed,  all  power  sought  to  be  con- 
trolled by  that  instrument  was  either  granted  to 
Congress,  or  retained  by  the  States  to  be  exercised 
by  them  in  subordination  to  definite  prohibitions. 
The  grants  are  clear  and  specific.  Congress  shall 
have  power,  to  borrow  money,  regulate  commerce, 
establish  uniform  laws  on  the  subject  of  bank- 
ruptcies, and  so  on.  AVhen  the  powers  are  sought 
to  be  limited  only,  but  not  granted,  the  language  of 
the  prohibition  is  likewise  clear  and  explicit.  No 
bill  of  attainder,  or  ex-post-facto  law  shall  be  passed. 
The  privilege  of  the  writ  of  habeas  coipus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it.  No  State 
shall  enter  into  any  treaty ;  gi'ant  letters  of  marque ; 
coin  money ;  emit  bills  of  credit ;  pass  any  law  im- 
pairing the  obligations  of  contracts,  and  so  on. 

It  is  one  thing  for  the  States  to  surrender  their 
power  over  the  domestic  relations,  by  an  amendment 
declaring,  for  example,  that  Congress  shall  have 
potoer  to  make  a  uniform  law  of  marriage  and 
divorce.     It  is  a  very  different  thing  to  limit  the 


1 84  THE   GEOGRAPHY  OF  MARRIAGE. 

power  of  tlie  States  by  an  amendment  declaring,  for 
example,  no  State  shall  pass  any  law  making  any 
tiling  but  adultery,  or  conviction  for  crime  and 
sentence  to  imprisonment  for  life,  etc.,  a  ground  for 
divorce.  Or,  no  divorce  shall  be  granted  except  for 
adultery,  or  for  [here  limiting  and  defining  the 
grounds  for  divorce].  So  to  reach  other  evils,  for 
example,  no  divorce  shall  be  granted,  unless  the 
attorney-general  of  the  State  or  the  public  prose- 
cutor of  the  Country,  shall  be  made  a  party  to 
the  action.  Neither  bigamy  nor  polygamy  shall 
exist  within  the  United  States  or  any  place  subject 
to  their  Jurisdiction.  A  maniage  valid  where  con- 
tracted shall  be  valid  everywhere,  except  where 
bigamy  and  polygamy  has  been  practised.  As  be- 
tween the  two  methods  of  amending  the  constitution, 
one  whereby  the  States  are  required  to  surrender 
their  power,  and  the  other  which  involves  no 
surrender,  which  plan  will  be  more  likely  to  suc- 
ceed ?  The  most  difficult,  perhaps,  of  all  the  amend- 
ments of  this  character,  would  be  one  limiting  and 
defining  the  grounds  of  divorce,  and  one  prohibiting 
any  law  forbidding  a  divorced  person  to  marry  ;  but 
the  adoption  of  amendments  of  this  character,  is  pos- 
sible. The  other  amendments,  or  amendments  of  like 
import,  might  be  more  readily  secured. 

In  no  better  way  can  this  be  done  than  in  the 
mode  suggested  by  Hon.  David  B.  Hill,  the  gov- 
ernor of  New  York,  in  his  annual  message,  in  which 
he  says : 


THE  REMEDY.  1 85 

"  Under  existing  laws  and  decisions  very  different 
rules  prevail  as  to  wliat  constitutes  marriage ;  and 
while  a  certain  divorced  person  may  legally  marry 
in  some  States,  to  do  so  in  others,  perhaps  adjoining, 
would  be  a  crime,  even  though  no  criminal  intent 
existed.  Such  anomalies  ought  not  to  exist.  In 
order  to  obtain  as  far  as  practicable  the  end  desired, 
it  is  necessary  to  secure  a  voluntary  concert  of  action 
among  the  States.  It  is  suggested,  therefore,  that 
some  motion  should  be  made  at  this  session  toward 
a  conference  of  representatives  of  all  the  States,  or 
of  such  as  may  choose  to  be  represented,  to  consider 
the  question  of  uniform  marriage  and.  divorce  laws." 

In  conformity  with  this  wise  and  prudent  sugges- 
tion, a  bill  was  introduced  authorizing  the  governor, 
by  and  with  the  consent  of  the  Senate,  to  appoint 
three  commissioners  to  examine  and  ascertain  the 
best  means  to  effect  an  assimilation  and  uniformity 
in  the  laws  of  the  States  as  to  marriage  and  divorce; 
and  to  consider  the  Avisdom  on  the  part  of  the  State 
of  New  York  of  inviting  the  other  States  of  the 
Union  to  send  representatives  to  a  convention,  to 
draft  uniform  laws  to  be  submitted  for  the  ap- 
proval and  adoption  of  the  several  States.  Should 
this  bill  speedily  become  a  law,  the  honor  which 
attaches  to  the  pioneer  in  this  great  reform  will 
belong  to  New  York.  It  is  reasonable  to  suppose 
that  the  matter  will  also  be  taken  up  promptly  by 
the  legislatures  in  the  New  England  States,  where 
the  subject  of  reform  in  the  marriage  and  divorce 
laws  has  been  agitated  for  years  by  such  men  as  Dr. 


1 86  THE   GEOGRAPHY  OF  MARRIAGE. 

Theodore  D.  Woolsey,  of  Massachusetts ;  Rev.  Dr. 
Loomis,  of  Connecticut ;  ex-Governor  Long,  of  Mas- 
sachusetts ;  Judge  Jeremiah  Smith,  of  New  Hamp- 
shire ;  Rev.  S.  W.  Dike,  of  Vermont ;  and  a  number 
of  other  prominent  citizens,  who  have  organized  the 
National  Divorce  Reform  League.  Many  of  the  lead- 
ing men  in  every  State  and  Territory  are  deeply  inter- 
ested, and  advocate  some  measui'e  of  relief.  The  legal 
profession,  through  its  National  Bar  Association,  and 
the  several  State  Bar  Associations,  have  been  dis- 
cussing the  necessity  of  uniform  legislation  with 
vigor  and  earnestness.  The  clergy  of  all  sects  and 
denominations,  though  conspicuous  in  their  adhesion 
to  the  principle  that  the  marriage  tie  should  be  in- 
dissoluble, and  who  regard  divorce  as  a  necessary 
evil,  will  doubtless  acquiesce  in  any  movement  seek- 
ing to  limit  the  causes  for  which  it  may  be  dissolved. 
Their  great  influence  has  been  and  is  being  steadily 
exerted,  through  evangelical  alliances,  synods,  as- 
semblies, presbyteries,  conferences,  conventions,  and 
councils,  to  secure  throughout  the  country  a  uniform 
and  harmonious  system  of  legislation. 

An  invitation  to  the  several  States,  as  suggested 
by  the  measure  now  pending  in  the  New  York  Legis- 
lature, would  doubtless  receive  a  prompt  and  cordial 
response  throughout  the  country.  Its  adoption 
would  secure  the  object  sought,  and  bring  together, 
in  convention,  a  body  of  representative  men  from 
every  State  and  Territory.  A  most  thorough  and 
])r()fitable    discussion    would   result,    which    would 


THE  REMEDY.  18/ 

arouse  popular  interest,  and  inaugui'ate  a  movement 
from  which  great  good  would  certainly  be  achieved. 
The  time  is  opportune.  North  Dakota,  South 
Dakota,  Montana,  and  Washington  have  been  ad- 
mitted as  States,  and  each  is  now  formulating  a 
constitution  and  code  of  laws  suitable  to  its  new 
position  as  an  independent  sovereignty  in  the  politi- 
cal body,  forming  the  greatest  nation  in  history. 
Now  is  the  time  for  each  to  define  by  its  organic  law 
the  limits  within  which  leo;islation  as  to  marriao;e 
and  divorce  may  be  exercised,  so  as  to  guard  against 
abuses.  Two  years  ago  Congress  appropriated  ten 
thousand  dollars  to  enable  the  Commissioner  of  the 
National  Bureau  of  Labor  to  collect  and  report 
to  Congress  the  statistics  of  and  relating  to  marriage 
and  divorce  in  the  several  States  and  Territories  and 
the  District  of  Columbia.  That  report  has  now  been 
made  and  covers  a  period  of  twenty  years,  from  1867 
to  1886.  The  figures  show  a  very  decided  increase 
in  the  number  of  divorces  granted,  and  in  the  ratio  of 
divorces  to  the  number  of  married  couples  during  the 
period.  They  are  startling,  because  they  show  that 
while  there  has  been  an  increase  of  about  sixty-nine 
per  cent,  in  population  there  has  been  an  increase  of 
one  hundred  and  fifty-seven  per  cent,  in  the  number  of 
divorces,  which  is  in  excess  of  twice  the  increase  in 
population.  The  total  number  of  divorces  granted  in 
the  United  States  in  the  time  covered  by  the  report, 
reaches  beyond  a  quarter  of  a  million,  and  is  in  exact 
figures  three    hundred    and  twenty-eight  thousand. 


1 88  THE    GEOGRAPHY  OF  MARRIAGE. 

seven  hundred  and  sixteen.  Less  than  ten  thousand 
divorces  were  granted  in  1867  and  more  than 
twenty-five  thousand  in  1886 ;  in  exact  figures, 
nine  thousand  nine  hundred  and  thirty-seven  in 
1867,  and  twenty-five  thousand  five  hundred  and 
twenty-five  in  1886. 

These  statistics  are  valuable,  and  will  materially 
aid  in  the  discussion  and  furnish  new  proofs  of  the 
urgent  need  of  prompt  and  vigorous  action  in  this 
matter.  Should  a  convention,  such  as  has  been  sug- 
gested by  the  governor  of  New  York,  be  convened, 
it  is  fair  to  presume  the  result  would  be  a  wise  and 
judicious  measure  to  be  submitted  for  the  approval 
of  the  States.  If  any,  no  matter  how  inconsiderable 
the  number,  should  deem  it  prudent  to  enact  it, — or 
a  statute  of  similar  import — its  subsequent  adoption, 
if  vigorously  urged,  might  in  time  be  secured,  at 
least  in  a  majority  of  the  States.  A  uniform  law,  or 
one  uniform  in  its  essential  and  important  features 
in  ten  States,  would  certainly  be  preferable  to  ten 
different  and  conflicting  laws,  and  would  be  a  stride 
in  advance.  If  in  a  few  j^ears  the  number  having 
similar  laws  were  increased  to  twenty  or  thirty,  the 
result  would  then  be  comparatively  easy  of  attain- 
ment with  the  proper  influences  at  work. 

A  prudent  constitutional  amendment,  limiting  the 
powers  of  the  States,  if  it  could  be  secured,  would 
greatly  aid  the  plan  Avith  respect  to  concert  of  action, 
for  the  reason  that  the  field  of  legislation  would  be 
somewhat  narrowed  by  the  prohibitions.     The  difli- 


THE   REMEDY.  1 89 

culty  in  securing  a  uniform  law  is  not  so  formidable, 
so  far  as  as  tlie  provisions  relative  to  marriage  are 
concerned.  An  ag-reement  as  to  what  shall  constitute 
a  valid  marriage  might  be  easily  arrived  at,  in  view 
of  the  fact  that  a  majority  of  the  States  are  already 
agreed  upon  the  fundamental  principle  of  the  right 
of  parties  to  contract  marriage.  Only  matters  of 
detail  with  regard  to  recording  and  preserving  evi- 
dence of  the  fact  remain  to  be  harmonized. 

But  a  uniform  law  governing  both  marriage  and 
divorce,  in  three  fourths  or  even  two  thirds  of  the 
States,  is  possible  of  attainment,  especially  if  certain 
prohibitory  amendments  limiting  the  power  of  the 
States  could  be  secured.  Such  a  result  would  operate 
as  a  decided  reform,  and  would  tend  to  correct  and 
mitigate  some  of  the  evils  and  hardships  arising  from 
the  conflict  of  authority  which  now  prevails. 


CHAPTER  XXII. 


DIVORCE   I]S"   THE  UNITED   STATES,    ARRANGED    GEO- 
GRAPHICALLY. 


"  No  navigator  has  yet  traced  lines  of  latitude  and  longitude  on  the  con- 
jugal sea." — Balzac. 


The  object  of  this  work  would  be  incomplete 
without  a  clear  exhibition  of  the  state  of  matri- 
mony, as  limited  and  controlled  by  legislation  in  the 
United  States.  The  task  involved  in  setting  out  in 
extenso  the  statutes  of  the  several  States  would  in- 
deed be  laborious  and  unprofitable.  Nevertheless 
the  reader  is  deeply  interested  to  know  the  charac- 
ter and  prominent  features  of  these  various  laws. 
In  order  to  ij^et  a  correct  notion  of  what  these  con- 
flicting  statutes  really  are,  about  which  so  much  has 
been  said  and  written,  a  clear  statement  of  the  essen- 
tial portions  of  the  system  now  in  force  in  each 
State  is  necessary.  The  object  has  been  to  group  the 
law  of  marriage  under  appropriate  heads,  to  enable 
the  reader  to  ascertain  easily  the  particular  fact  con- 
cerning which  information  is  desired,  and  to  give 
also  the  law  of  bigamy  and  gi'ounds  of  divorce  in  each 
State.     Care  has  been  taken  to  state  the  substance 

190 


MARRIAGE  IN   THE  UNITED   STATES.  19I 

of  tlie  law  plainly,  without  unnecessary  repetition, 
omitting  as  far  as  possible  technical  words  or  phrases. 

ALABAMA. 

The  most  remarkable  feature  in  the  marriage  laws  of  Ala- 
bama is  the  requirement  that  parties  under  the  age  of  twenty- 
one  years  must  give  bonds  in  the  penalty  of  ^200.00,  con- 
ditioned that  there  is  no  lawful  impediment  to  the  marriage. 

How  to  Marry. — No  marriage  shall  be  solemnized  with- 
out a  license  issued  by  the  judge  of  probate  of  the  county  in 
which  the  woman  resides.  A  judge,  minister  of  the  gospel, 
or  justice  of  the  peace,  who  joins  persons  in  marriage  without 
such  license,  forfeits  $1,000.  He  forfeits  this  sum  also  in 
case  he  goes  out  of  the  State  to  solemnize  the  marriage  with- 
out a  license,  if  one  or  both  of  the  parties  reside  in  Alabama, 
unless  a  license  has  been  procured  in  accordance  with  the 
law  of  the  State  where  the  wedding  takes  place.  The  law 
does  not  seem  to  punish  the  bride  or  groom,  or  to  declare  a 
marriage  solemnized  without  a  license  void.  No  particular 
form  for  the  license  is  prescribed  by  the  statute.  Marriages 
may  be  solemnized  by  any  licensed  minister  of  the  gospel,  in 
regular  communion  with  the  Christian  Church  or  society  of 
which  he  is  a  member,  by  a  judge  of  the  Supreme,  Circuit,  or 
City  Court,  or  by  a  chancellor  within  the  State  of  Alabama, 
or  by  a  judge  of  probate  or  any  justice  of  the  peace  within  his 
county.  Also  by  the  pastor  of  any  religious  society,  according 
to  the  rules  ordained  or  customs  established  by  such  society. 

The  people  called  Mennonites,  or  Quakers,  or  any  other 
Christian  Society,  having  similar  rules  or  regulations,  may 
solemnize  marriage  according  to  their  forms  by  the  consent  of 
the  parties,  published  and  declared  before  the  congregation 
assembled  for  public  worship. 

The  legal  fee  for  celebrating  a  marriage  is  $2.  The  cele- 
brant must,  within  one  month  thereafter,  certify  the  fact  in 
writing,  giving  names  of  parties,  time,  and  place  of  ceremony. 


192  THE   GEOGRAPHY  OF  MARRIAGE. 

which  certificate  must  be  recorded  in  the  book  kept  by  the 
registry  of  licenses.  The  judge  of  probate  must  keep  a  book 
in  which  all  licenses  issued  by  him  must  be  registered,  and  the 
fact  as  to  whether  the  parties  were  of  age. 

Marriage  of  Children. — The  age  of  consent  in  Alabama 
is  seventeen  in  males  and  fourteen  in  females,  and  persons 
under  those  ages  are  incapable  of  contracting  marriage.  But 
if  the  man  is  under  twenty-one  and  the  woman  under  eighteen, 
and  have  not  had  a  former  wife  or  husband,  the  probate  judge 
must  require  the  consent  of  the  parents  or  guardians  of  the 
minors,  either  personally  or  in  writing,  and  if  in  writing  its 
execution  must  be  proved,  and  this  written  consent  must  be 
recorded  with  the  license  ;  and  he  must  also  require  a  bond  to 
the  State  of  Alabama  in  the  penal  sum  of  $200,  to  be  void  if 
there  is  no  lawful  cause  why  such  marriage  should  not  be  cele- 
brated. The  probate  judge,  for  issuing  a  license  contrary  to 
law,  forfeits  $200  to  the  parent  or  guardian.  But  if  the  parent 
or  guardian  consented,  or  the  judge  was  misled  as  to  the  age  of 
the  minor  by  his  or  her  personal  appearance,  and  he  took  the 
precaution  to  take  an  affidavit  as  to  the  age  made  by  the  minor, 
or  some  credible  person  claiming  to  know  the  age,  to  the  effect 
that  the  minor  was  of  lawful  age,  the  fine  cannot  be  collected. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
The  son  must  not  marry  his  mother,  or  step-mother,  or  the 
sister  of  his  father  or  mother,  or  the  widow  of  his  uncle.  The 
brother  must  not  marry  his  sister  or  half-sister,  or  the  daughter 
of  his  brother  or  half-brother,  or  of  his  sister  or  half-sister. 
The  father  must  not  marry  his  daughter  or  granddaughter,  or 
the  widow  of  his  son.  No  man  shall  marry  the  daughter  of 
his  wife  ;  and  these  provisions  apply  to  illegitimate  as  well  as 
to  legitimate  children  and  other  relations.  But  the  issue  of 
such  marriages  before  the  same  are  annulled  shall  not  be 
deemed  illegitimate.  Persons  knowingly  marrying  such  rela- 
tives, on  conviction  must  be  imprisoned  not  less  than  one  nor 
more  than  seven  years,  and  the  conviction  annuls  the  marriage, 
and  the  court  must  declare  it  void. 


MARRIAGE  IN  THE    UNITED   STATES.  1 93 

If  any  white  person  and  any  negro,  or  the  descendant  of 
any  negro,  to  the  third  generation,  inclusive,  though  one  ances- 
tor of  each  generation  was  a  white  person,  intermarry,  each 
must  on  conviction  be  imprisoned  not  less  than  two  nor  more 
than  seven  years. 

Bigamy, — If  any  person,  having  a  former  wife  or  hus- 
band living,  marries  another,  the  punishment  on  conviction 
is  imprisonment  not  less  than  two  nor  more  than  five  years, 
unless  the  accused  can  show  that  prior  to  such  second 
marriage  a  decree  of  divorce  had  been  procured  from  a 
competent  court,  dissolving  the  first  marriage  and  allowing 
the  accused  to  marry  again  ;  or  that  the  former  husband  or 
wife  of  the  accused  remained  absent  from  him  or  her  for 
the  last  five  years,  before  the  second  marriage,  and  the 
accused  at  the  time  of  the  second  marriage  did  not  know 
such  husband  or  wife  was  living. 

Divorce. — The  Court  of  Chancery  has  power  to  grant  a 
divorce  absolute  to  an  aggrieved  party,  if  the  following  causes 
be  shown  as  grounds  therefor  :  (i)  Impotency  ;  (2)  adultery  ; 
(3)  voluntary  abandonment  from  bed  and  board  for  two  years, 
before  suit  for  divorce  ;  (4)  imprisonment  in  penitentiary  for 
two  years,  the  sentence  being  for  seven  years  longer  ;  (5)  a 
crime  against  nature,  committed  either  before  or  after  mar- 
riage. In  favor  of  the  wife,  it  may  be  granted  for  actual 
violence  to  her  person,  attended  with  danger  to  life  and  health, 
or  where  there  is  reasonable  ground  to  apprehend  such 
violence  ;  in  favor  of  the  husband,  when  the  wife  was  pregnant 
at  time  of  marriage  without  his  knowledge  or  agency.  Divorce 
for  voluntary  abandonment  is  granted  only  to  one  who  has 
resided  three  years  in  Alabama,  before  the  suit.  If  the  de- 
fendant does  not  live  in  Alabama,  the  person  applying  for  the 
divorce  must  have  lived  there  a  year.  A  husband  or  wife  may 
sue  for  a  separation  for  cruelty,  as  well  as  for  any  of  the 
grounds  for  which  an  absolute  divorce  may  be  granted.  The 
judgment  of  divorce  must  provide  whether  or  not  the  guilty 
party  shall  or  shall  not  marry  again. 


194  THE   GEOGRAPHY  OF  MARRIAGE.  " 

ARIZONA. 

Arizona  is  the  only  place  in  the  United  States  where  a  man 
and  woman  may  become  husband  and  wife  without  getting 
married.  A  law,  passed  February  27,  1887,  provides  that  all 
persons  who  have,  prior  to  that  date,  lived  together  as  husband 
and  wife,  and  continue  to  do  so  for  one  year  after  the  passage 
of  the  act,  or  until  one  of  the  parties  shall  die,  if  death  occurs 
before  the  expiration  of  one  year,  shall  be  considered  as  having 
been  legally  married.  The  children  of  such,  or  of  persons 
living  together,  who  subsequently  marry,  are  legitimate. 

All  marriages  valid  where  contracted  are  valid  in  Arizona. 

Since  the  law  does  not  declare  that  a  marriage  shall  be  void 
if  celebrated  without  a  license,  or  in  the  absence  of  a  third 
person,  it  may  be  that  parties  can  marry  themselves. 

How  to  Marry. — A  license  must  be  issued  by  the  county 
recorder,  and  must  be  recorded  by  him.  All  regularly 
licensed  or  ordained  ministers  of  the  gospel,  judges  of  courts 
of  record,  and  justices  of  the  peace  in  their  counties  are 
authorized  to  solemnize  marriage.  The  celebrant  must  en- 
dorse the  marriage  on  the  license  and  return  it  to  the  ofifice  of 
the  recorder  within  thirty  days  ;  and  this  return  must  also  be 
recorded  ;  and  if  the  celebrant  fails  to  do  so  he  forfeits  $100. 

The  marriage  certificate  must  also  be  executed,  filed,  and  re- 
corded pursuant  to  the  act  of  Congress.' 

'  Note. — In  addition  to  the  recording  of  the  marriage  certificate,  under 
the  territorial  law,  every  marriage,  in  every  Territory  of  the  United  States, 
must  also,  by  virtue  of  an  act  of  Congress  approved  March  3,  1S87,  be  cer- 
tified, by  certificate  stating  the  fact  and  nature  of  the  ceremony,  the  full 
name  of  each  party  concerned,  the  full  name  of  every  officer,  priest,  or  per- 
son taking  part  in  the  ceremony.  The  certificate  shall  also  be  signed  by  the 
bride,  groom,  ofificer,  priest,  or  person  taking  part,  and  such  officer,  priest, 
or  person  must  file  it  in  the  ofifice  of  the  Probate  Court,  or  court  having 
probate  powers  in  the  county  or  district  where  the  wedding  takes  place.  It 
shall  be  immediately  recorded  and  becomes  a  public  record.  For  failure  to 
comply  with  these  provisions,  the  punishment,  is  by  fine  of  not  more  than 
$1,000  or  imprisonment,  not  longer  than  two  years,  or  by  both  fine  and 
imprisonment. 


MARRIAGE   IN  THE  UNITED    STATES.  I95 

Marriage  of  Children. — Males  under  eighteen  and  females 
under  sixteen  shall  not  marry.  No  recorder  shall  issue  a  li- 
cense without  consent  of  parents  or  guardians  of  persons  under 
such  ages  ;  if  both  parents  are  alive,  the  consent  of  the  father 
alone  shall  be  sufficient,  unless  such  parents  live  apart,  and 
then  the  consent  must  be  given  by  the  one  having  custody  of 
the  minor.  For  issuing  a  license  without  such  consent  the 
recorder  or  his  deputy  shall  forfeit  $100. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
Marriages  between  parents  and  children,  including  grandpa- 
rents and  grandchildren  of  every  degree  ;  between  brothers 
and  sisters,  of  half  or  whole  blood  ;  between  uncles  and 
nieces,  aunts  and  nephews,  and  between  first  cousins,  are  void. 
The  rule  extends  to  illegitimate  relatives.  Punishment,  impris- 
onment not  exceeding  ten  years. 

Marriages  of  persons  of  Caucasian  blood  or  their  descend- 
ants with  Africans  or  Mongolians  and  their  descendants  are 
void. 

Bigamy. — Every  person  having  a  husband  or  wife  living, 
who  marries  another,  is  guilty  of  bigamy,  unless  it  is  shown 
that  such  husband  or  wife  has  been  absent  five  successive  years 
without  being  known  to  the  accused  to  be  living  within  that 
time,  or  that  the  first  marriage  has  been  pronounced  void, 
annulled,  or  dissolved  by  judgment  of  a  competent  court  or 
other  lawful  authority.  Punishment,  fine  not  exceeding  $2,000 
and  imprisonment  not  exceeding  ten  years. 

Every  person  who  knowingly  marries  the  husband  or  wife 
of  another,  in  a  case  where  such  husband  or  wife  would  be 
guilty  of  bigamy,  may  be  fined  not  less  than  $2,000  or  impris- 
oned not  exceeding  three  years. 

Divorce — May  be  had  for  :  (i)  incurable  impotency  or  other 
impediment  existing  at  time  of  marriage  ;  (2)  excesses  ;  (3)  cruel 
treatment ;  (4)  outrage,  whether  by  personal  violence  or  other 
means.  In  favor  of  husband,  for  wife's  adultery  or  six  months' 
abandonment  ;  in  favor  of  wife,  for  husband's  adultery,  six 
months'   abandonment,    habitual   intemperance,    six    months' 


196  THE   GEOGRAPHY  OF  MARRIAGE. 

wilful  neglect  to  provide  ;  idleness,  profligacy,  or  dissipation. 
In  favor  of  either,  for  conviction,  after  marriage,  of  felony. 
Complainant  must  be  a  bona-fide  resident  for  six  months  before 

suit. 

ARKANSAS. 

This  is  the  only  State  in  which  the  death  penalty  is  pre- 
scribed in  connection  with  marriage.  The  law  declares  that 
"  every  person  who  shall  take  unlawfully,  and  against  her  will, 
any  woman,  and  by  force,  duress,  or  menace  compel  her  to 
marry  him,  or  to  marry  any  other  person,  or  to  be  defiled,  shall 
suffer  death."  Bonds  must  be  given  to  secure  a  license.  A 
marriage  valid  in  State  or  country  where  parties  actually 
resided  shall  be  deemed  valid  in  Arkansas. 

How  to  Marry. — The  county  clerk  must  grant  a  license  if 
assured  the  parties  are  legally  entitled  to  it,  upon  their  giving 
bond  in  penalty  of  $100  with  one  surety  to  the  effect  that  ap- 
plicant has  a  lawful  right  to  the  certificate.  Applicant  may 
introduce  parent  or  guardian  to  prove  age,  and  if  not  of  lawful 
age  evidence  of  consent  of  parent  or  guardian,  either  verbal  or 
written,  must  be  produced.  Obtaining  license  without  consent 
is  a  misdemeanor,  punishable  by  fine  of  not  less  than  %\o  nor 
more  than  $100  ;  party  is  also  liable  in  damages  to  i)erson  in- 
jured. Clerk  who  issues  a  license  contrary  to  law  is  guilty  of 
misdemeanor,  and  may  be  fined  not  less  than  $100  nor  more 
than  $500.  The  ceremony  may  be  performed  by  the  governor 
of  the  State  ;  any  justice  of  the  peace  in  the  county  where  the 
marriage  is  solemnized  ;  any  regular  ordained  minister  or  priest 
of  any  religious  sect  or  denomination.  But  no  minister  or 
priest  is  authorized  to  act  until  he  shall  have  recorded  in  the 
office  of  some  clerk  or  recorder  in  the  State  his  license,  or 
credentials  of  his  clerical  character,  and  obtained  a  certifi- 
cate of  such  record  under  his  hand  and  seal.  Any  minister 
or  priest  who  shall  solemnize  the  rites  of  marriage  without 
doing  so  is  guilty  of  a  misdemeanor,  and  liable  to  a  a  fine 
of  not  less  than   $100.     When   the  ceremony  of  marriage  is 


MARRIAGE  IN  THE  UNITED   STATES.  1 97 

performed  by  a  priest  or  minister,  it  shall  be  according  to 
the  customs  of  his  church  or  religious  society  ;  when  performed 
by  any  civil  officer,  such  form  shall  be  observed  as  the  officer 
shall  deem  most  appropriate.  A  religious  society  which  rejects 
formal  ceremony  may  join  together  in  marriage  members 
according  to  the  forms,  customs,  or  rites  of  the  society. 
Quakers,  or  Friends,  and  other  societies  are  included  in  this 
provision.  The  celebrant  must  endorse  the  marriage  on  the 
certificate,  and  the  bride  and  groom  must  return  it  to  the  clerk 
within  sixty  days,  or  forfeit  their  bonds,  and  may  be  fined  not 
less  than  $100  nor  more  than  $500. 

Marriage  of  Children. — The  age  of  consent  is  fourteen  in 
females  and  seventeen  in  males.  If  contracted  by  persons 
under  the  age  of  consent,  the  marriage  is  void  only  from  the 
time  its  nullity  shall  be  declared  by  a  court  of  competent 
jurisdiction. 

Forbidden  Marriages  :  Relatives ;  Miscegenation. — 
Marriages  between  parents  and  children,  including  grand- 
parents and  grandchildren  of  every  degree  ;  between  brothers 
and  sisters,  of  half  or  whole  blood  ;  uncles  and  nieces,  aunts 
and  nephews  ;  and  between  first  cousins,  including  as  well  such 
illegitimate  relatives,  are  void,  and  the  offence  is  a  misde- 
meanor. Marriages  between  whites  and  negroes,  or  mulattoes, 
are  void. 

Bigamy. — Where  a  person  having  a  husband  or  wife  living 
shall  marry,  the  second  marriage  shall  constitute  the  crime  of 
bigamy,  unless  the  accused  can  show  that  the  first  marriage  is 
no  longer  recognized  in  law  as  binding,  and  this  may  be  shown 
in  one  of  three  ways  :  by  reason  of  absence,  non-age,  or 
divorce.  As  to  absence,  it  must  be  shown  either  (i)  that  the 
wife  or  husband  of  the  accused  shall  have  been  absent  five 
successive  years,  without  being  known  to  the  accused  to  be 
living  ;  or  (2)  that  such  person  has  been  absent  from  the  United 
States  for  the  space  of  five  years.  The  divorce  must  have  been 
absolute,  and  pronounced  by  a  court  of  competent  jurisdiction, 
either  dissolving  the  prior  marriage,  or  pronouncing  it  void  on 


198  THE   GEOGRAPHY  OF  MARRIAGE. 

the  ground  of  the  nullity  of  the  marriage  contract.  As  to  non- 
age, it  must  be  shown  not  only  that  the  prior  marriage  contract 
was  within  the  age  of  legal  consent,  but  must  have  been  so 
declared  and  annulled  by  a  court  of  competent  jurisdiction. 

The  punishment  is  imprisonment  for  not  less  than  three  nor 
more  than  seven  years. 

And  if  a  person  who  is  single  shall  knowingly  marry  the 
husband  or  wife  of  another,  in  any  case  where  such  husband 
or  wife  would  be  punishable  for  bigamy,  shall  be  subject  to  the 
same  punishment. 

Where  a  husband  abandons  his  wife,  or  a  wife  her  hus- 
band, and  resides  beyond  the  limits  of  Arkansas  for  five 
successive  years,  without  being  known  to  such  person  to  be 
living,  their  death  shall  be  presumed,  and  any  marriage  entered 
into  after  five  years  shall  be  valid  as  if  husband  or  wife  was 
dead. 

Divorce. — May  be  obtained  also  for  (i)  impotency  ;  (2) 
adultery  ;  (3)  desertion  one  year  ;  (4)  former  husband  or  wife 
living  ;  (5)  conviction  of  felony  ;  (6)  habitual  drunkenness  one 
year  ;  (7)  cruelty  ;  (8)  incurable  insanity.  One  year's  residence 
required. 

CALIFORNIA. 

In  California  consent  alone  will  not  constitute  marriage  ;  it 
must  be  followed  by  a  solemnization  or  by  mutual  assumption 
of  marital  rights,  duties,  and  obligations.  All  marriages  con- 
tracted without  the  State  of  California,  valid  where  contracted, 
are  declared  valid  there. 

How  to  Marry. — Parties  may  marry  themselves  or  they 
may  be  married  by  a  judge  of  the  Supreme  Court,  justice  of 
the  peace,  priest,  or  minister  of  the  gospel  of  any  denomina- 
tion. Consent  to,  and  subsequent  consummation  of,  the 
marriage  may  be  manifested  in  any  form  and  proved  as  any 
other  fact.  If  parties  marry  themselves,  they  must  jointly 
make  a  declaration  showing  the  names,  ages,  and  residences  of 
the  parties,  the  facts  and  date  of  the  marriage,  and  a  declaration 


MARRIAGE  IN  THE  UNITED   STATES.  1 99 

that  it  has  not  been  solemnized.  This  declaration  must  be 
acknowledged  and  recorded  like  a  deed.  Marriages  are 
required  to  be  licensed,  solemnized,  and  recorded  ;  but  the  law 
declares  that  failure  to  comply  with  such  provisions  will  not 
inviolate  a  lawful  marriage.  The  license  must  be  issued  by  the 
clerk  of  the  county  in  which  the  marriage  is  celebrated.  No 
particular  form  of  ceremony  is  required,  but  the  parties  must 
declare  in  presence  of  the  celebrant  that  they  take  each  other 
as  husband  and  wife.  The  celebrant  must  require  the  license 
to  be  produced.  If  he  doubts  the  correctness  of  the  facts 
therein  stated,  he  must  satisfy  himself  and  may  administer 
oaths  and  examine  parties  and  witnesses.  He  must  attach  to 
the  license  a  certificate  showing  the  fact,  time,  and  place 
of  solemnization,  the  names  and  places  of  residence  of  one  or 
more  witnesses,  and  return  it  within  thirty  days  to  the  county 
recorder. 

If  no  record  of  a  marriage  prior  to  1874  is  known  to  exist, 
parties  may  join  in  a  written  declaration  showing  their  names, 
ages,  and  residences,  the  fact  of  the  marriage,  and  that  no 
record  thereof  was  known  to  exist.  It  must  be  acknowledged 
and  attested  by  at  least  three  witnesses  and  recorded  like  a  deed. 

Where  persons,  not  minors,  have  been  living  as  husband  and 
wife,  they  may  be  married  by  any  clergyman,  without  a 
license,  who  must  give  the  parties  a  certificate  and  make 
an  entry  of  it  in  the  record  of  the  church  of  which  he  is  a 
representative.     No  other  record  need  be  made. 

Marriage  of  Children. — The  age  of  consent  is  eighteen 
in  males  and  fifteen  in  females,  but  if  the  male  is  under 
twenty-one  and  the  female  under  eighteen,  and  neither  is 
a  widow  or  widower,  the  clerk  shall  not  issue  a  license  unless 
the  parents  of  such  person,  or  one  of  such  parents,  or  guardian, 
or  person  having  charge  of  such  minor,  shall  consent  thereto 
in  writing.  The  clerk  shall  file  the  consent.  Before  issuing  the 
license  the  clerk  is  authorized  to  examine  the  parties  and  wit- 
nesses and  to  receive  affidavits  as  to  the  facts,  and  he  must 
state  them  in  the  license. 


200  THE    GEOGRAPHY  OF  MARRIAGE, 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 

Marriages  between  parents  and  children,  ancestors  and  de- 
scendants of  every  degree,  and  between  brothers  and  sisters  of 
half  as  well  as  whole  blood,  uncles  and  nieces,  or  aunts  and 
nephews,  are  incestuous  and  void,  whether  such  relations  are 
legitimate  or  illegitimate.  Either  party  may  proceed  by  action 
to  have  such  marriage  so  declared.  The  punishment  for 
incest  is  imprisonment  not  exceeding  ten  years. 

Marriage  of  white  persons  with  negroes  or  mulattoes  is 
void.  The  county  clerk  is  forbidden  to  issue  a  license  author- 
izing the  marriage  of  white  persons  with  a  negro,  mulatto,  or 
Mongolian. 

Bigamy. — Marriage  during  the  life  of  a  former  husband  or 
wife  is  void,  unless  the  first  marriage  has  been  annulled  or  dis- 
solved, or  such  former  husband  or  wife  has  been  absent  and 
not  known  to  the  party  to  be  living  for  five  successive  years 
immediately  preceding  such  subsequent  marriage,  or  who  has 
been  believed  by  such  party  to  be  dead  at  the  time  of  the 
second  marriage.  In  either  case  the  marriage  is  valid  until  its 
nullity  is  declared  by  a  competent  tribunal.  The  party  marry- 
ing again  will  be  guilty  of  bigamy  unless  it  can  be  shown  that 
the  absence  has  continued  for  five  successive  years,  such 
absentee  not  being  known  to  the  accused  to  be  living  within 
that  time  ;  or  that  the  former  marriage  has  been  pronounced 
void,  annulled,  or  dissolved  by  a  competent  court.  The 
punishment  is  by  fine  not  exceeding  $2,000  and  imprison- 
ment not  exceeding  three  years.  Every  person  knowingly 
marrying  a  husband  or  wife  of  another  M^here  the  person 
so  married  would  be  guilty  of  bigamy,  is  liable  to  a  fine  of 
not  less  than  $2,000  or  imprisonment  not  exceeding  three 
years. 

Divorce. — May  be  had  for  :  (i)  adultery  ;  (2)  extreme 
cruelty  ;  (3)  wilful  desertion  ;  (4)  wilful  neglect  ;  (5)  habitual 
intemperance, — last  three  causes  must  continue  for  one  year  ; 
(6)  conviction  of  felony.  Six  months'  residence  required 
before  suit. 


MARRIAGE   IN  THE   UNITED    STATES.  20I 

COLORADO. 

The  laws  of  Colorado  declare  that  all  marriages,  valid  where 
contracted,  shall  be  valid  in  Colorado,  except  that  bigamy  and 
polygamy  are  prohibited.  The  only  marriages  declared  void 
in  terms  are  those  involving  incest,  or  those  contracted  between 
white  persons  and  negroes  or  mulattoes. 

How  to  Marry. — A  license  must  be  issued  by  the  county 
clerk  only  to  parties  legally  entitled  to  marry.  A  form  of  the 
license  is  prescribed  by  the  statute.  Clerk's  fee  for  license, 
$1.  If  the  clerk  does  not  know  of  his  own  knowledge  that 
the  parties  are  competent,  he  may  administer  oaths,  and  must 
take  the  affidavits  of  the  applicants  and  such  other  persons  as 
he  may  deem  proper,  and  of  any  persons  whose  testimony  may 
be  offered,  and  if  the  affidavits  show  the  parties  to  be  compe- 
tent he  should  issue  the  license,  and  the  affidavit  shall  be  his 
warrant  against  fine  or  forfeiture.  Issuing  a  license  to  parties 
one  or  both  of  whom  are  not  entitled  to  it,  without  taking  such 
affidavits,  constitutes  a  misdemeanor,  punishable  by  fine  of 
$ioo.  If  parties  swear  falsely  to  secure  a  license,  they  are 
guilty  of  perjury. 

Marriage  may  be  celebrated  by  any  judge  or  justice  of  the 
peace,  clergyman  or  licensed  preacher  of  the  gospel.  The 
celebrant  must  annex  his  certificate  of  the  marriage  to  the 
license  and  return  it  within  thirty  days  to  the  clerk.  Failure 
to  do  so  is  a  misdemeanor  punishable  by  a  fine  of  not  less  than 
$20  nor  more  than  $50.  He  must  also  keep  a  record  of  all 
marriages,  and,  within  three  months,  transmit  a  certificate  of 
every  marriage,  containing  both  Christian  and  surnames  of  the 
parties,  to  the  county  clerk  of  the  county  where  the  marriage 
took  place.  The  celebrant  who  solemnizes  a  marriage  without 
a  license,  or  with  knowledge  that  either  party  is  incompetent 
to  marry,  is  guilty  of  a  misdemeanor,  and  is  liable  to  a  fine  of 
not  less  than  $50  nor  more  than  $200.  If  he  has  no  personal 
knowledge  of  the  competency  of  either  of  the  parties  he  may 
rely  on   the  license.     All  returns   must  be   recorded  by  the 


202  THE   GEOGRAPHY  OF  MARRIAGE. 

clerk  within  a  month  after  receiving  the  same.  For  failure  to 
do  so  he  becomes  liable  to  forfeit  $100.  He  must  keep  also  a 
file  of  every  marriage  license  returned  to  him.  Making  a  false 
return  or  false  record  is  a  misdemeanor  punishable  by  a  fine 
of  not  less  than  $100,  and  imprisonment  not  less  than  three 
months. 

Marriage  of  Children. — No  person  shall  join  in  marriage 
any  male  under  the  age  of  twenty-one  or  female  under  the  age 
of  eighteen,  who  has  not  been  previously  married,  without 
the  consent  of  the  parents  or  guardian  under  whose  care  and 
government  such  minor  may  be.  But  if  the  parties  have  no 
parents  or  guardian  in  Colorado,  the  celebrant  shall  exercise 
his  own  judgment  in  uniting  them  in  marriage.  A  violation 
of  these  provisions  is  a  misdemeanor,  punishable  by  a  fine  not 
exceeding  $500. 

Forbidden  Marriages :  Relatives  ;  Miscegenation. — 
All  marriages  between  parents  and  children,  including  grand- 
parents and  grandchildren  of  every  degree  ;  between  brothers 
and  sisters,  of  half  as  well  as  whole  blood  ;  and  between  uncles 
and  nieces,  aunts  and  nephews,  including  illegitimate  as  well 
as  legitimate  children  and  relatives,  are  incestuous  and  void. 
Persons  knowingly  marrying  such  relatives,  or  performing  the 
ceremony,  are  guilty  of  a  misdemeanor  punishable  by  fine  not 
less  than  $50  nor  more  than  $500,  or  imprisonment  not  less 
than  three  months  nor  more  than  two  years.  The  Criminal 
Code  of  Colorado  also  includes  first  cousins  in  this  list  of  void 
and  criminal  marriages. 

Marriage  between  negroes  or  mulattoes  and  white  persons 
is  void,  and  punishable  in  the  same  manner  as  marriage  with 
relatives.  But  people  living  in  that  portion  of  Colorado 
acquired  from  Mexico  may  marry  according  to  tlie  custom  of 
that  country. 

Bigamy. — Having  two  wives  or  two  husbands  at  the  same 
time,  knowing  thai  a  former  husband  or  wife  is  still  alive,  is 
bigamy,  unless  the  accused  can  show  that  the  former  husband 
or  wife  shall  have  been  continually  absent  for  the  space  of  five 


MARRIAGE  IN  THE  UNITED   STATES.  203 

years  prior  to  the  second  marriage,  the  accused  not  knowing 
such  husband  or  wife  to  be  living  within  that  time  ;  or  that 
the  accused  has  been  divorced  by  lawful  authority  ;  or  that 
the  former  marriage  has  been  lawfully  declared  void.  If  such 
second  marriage  shall  have  taken  place  without  the  State  of 
Colorado,  cohabitation  by  the  parties  afterwards  in  that  State 
constitutes  bigamy,  and  may  be  tried  in  the  county  where  the 
crime  was  committed.  The  punishment  is  by  fine  not  exceed- 
ing $r,ooo,  and  imprisonment  not  exceeding  two  years. 

If  an  unmarried  person  shall  knowingly  marry  the  husband 
or  wife  of  another,  the  penalty  is  by  fine  of  not  more  than 
$500,  or  by  imprisonment  not  exceeding  one  year. 

Divorce — May  be  had  for  :  (i)  impotence  at  time  of  marriage 
which  continues,  or  impotency  occurring  after  marriage  in 
consequence  of  immoral  or  criminal  conduct ;  (2)  if  he  or  she 
had  a  wife  or  husband  living  at  the  time  of  marriage  ;  (3) 
adultery ;  (4)  wilful  desertion  and  absence  from  husband  or 
wife  for  one  year,  or  where  either  wilfully  deserts  the  other 
and  departs  from  the  State  without  any  intention  of  returning  ; 
(5)  where  a  husband,  being  in  good  bodily  health,  shall  fail  to 
make  reasonable  provision  for  the  support  of  his  family 
for  one  year;  (6)  habitual  drunkenness  for  one  year;  (7) 
extreme  cruelty  ;  (8)  conviction  of  felony  or  other  infamous 
crime. 

CONNECTICUT. 

In  this  State  the  law  is  silent  on  many  points  pertaining  to 
matrimony.  By  a  law  passed  in  1876,  it  is  declared  that  where 
the  parents  of  children  born  out  of  wedlock  subsequently 
marry,  and  recognize  such  children  as  theirs,  they  shall  be 
deemed  legitimate,  and  inherit  equally  with  other  children. 

How  to  Marry. — No  person  shall  be  married  until  one  of 
them  shall  inform  the  registrar  of  the  town  in  which  the  mar- 
riage is  to  be  celebrated,  or,  in  case  of  his  inability,  the  town- 
clerk,  of  the  name,  age,  color,  occupation,  birthplace,  resi- 
dence, and  condition  (whether  single,  widowed,  or  divorced) 


204  THE   GEOGRAPHY  OF  MARRIAGE. 

of  each  ;  and  the  registrar  may  administer  oaths  in  all  cases 
coming  before  him.  Such  registrar  or  town-clerk  shall  there- 
upon issue  his  certificate  that  the  parties  therein  named  have 
complied  with  the  foregoing  requirements,  which  certificate 
shall  be  a  license  for  any  person,  authorized  to  celebrate 
marriage,  to  join  in  marriage,  within  said  town  only,  the 
parties  therein  named.  But  no  certificate  shall  be  issued  to  a 
minor  without  the  consent  of  parent  or  guardian.  See 
"  Marriage  of  Children." 

All  judges,  justices  of  the  peace,  and  ordained  or  licensed 
clergymen  belonging  to  Connecticut  or  any  other  State,  so 
long  as  they  continue  in  the  work  of  the  ministry,  may  join 
persons  in  marriage.  And  all  marriages  attempted  to  be 
celebrated  by  any  other  person  shall  be  void  ;  but  all  mar- 
riages which  shall  be  solemnized  according  to  the  forms  and 
usages  of  any  religious  denomination  in  the  State  of  Connecti- 
cut shall  be  valid. 

Any  person  who  shall  join  any  persons  in  marriage  without 
having  received  a  certificate  issued  by  the  registrar  or  town- 
clerk,  shall  forfeit  $ioo.  And  whoever  undertakes  to  join 
persons  in  marriage,  knowing  that  he  is  not  authorized  so  to 
do,  shall  be  fined  not  more  than  $500,  or  imprisoned  not  more 
than  one  year,  or  both. 

Every  person  who  shall  join  any  person  in  marriage,  shall 
certify,  upon  the  license  certificate,  the  fact,  time,  and  place  of 
such  marriage,  and  return  it  to  the  registrar  of  the  town  where 
it  was  issued,  before  or  during  the  first  week  of  the  month 
next  succeeding  such  marriage,  and  upon  failure  thereof,  shall 
forfeit  %\o.  The  fee  for  issuing  certificate  of  license  to 
marry  is  fifty  cents,  and  for  recording  same  ten  cents. 

Marriage  of  Children. — No  marriage  certificate  shall 
be  issued  if  either  of  the  parties  is  a  minor,  under  the  control 
of  a  parent  or  guardian,  until  such  parent  or  guardian  shall 
give  to  the  registrar  or  town-clerk  his  consent  ;  and  any  regis- 
trar or  town-clerk  who  shall  knowingly  issue  such  certificate, 
without  such  consent,  shall  forfeit  to  the  State  $100.     Reg- 


MARRIAGE   IN  THE  UNITED   STATES.  205 

istrars  of  marriages  are  now  authorized  to  administer  oaths  in 
all  cases  coming  before  them. 

Forbidden  Marriages :  Relatives. — No  man  shall 
marry  his  mother,  grandmother,  daughter,  granddaughter, 
sister,  aunt,  niece,  step-mother,  or  step-daughter  ;  no  woman 
shall  marry  her  father,  grandfather,  son,  grandson,  brother, 
uncle,  nephew,  step-father,  or  step-son  ;  and  if  any  man  or 
woman  shall  marry  within  the  degrees  aforesaid,  such  marriage 
shall  be  void.  The  punishment  for  marrying  such  relatives  is 
imprisonment  for  not  less  than  two  nor  more  than  five  years. 

Bigamy. — Every  person  who  shall  marry  another,  if  either 
is  lawfully  married,  and  they  shall  live  together  as  husband 
and  wife,  or  shall  so  marry  another  in  any  other  State  or 
country,  in  violation  of  the  laws  thereof,  if  the  persons  so 
married  shall  knowing  cohabit  and  live  together  in  Con- 
necticut as  husband  and  wife,  shall  be  imprisoned  in  the  State 
prison  not  more  than  five  years.  The  statute  is  silent  as  to 
what  will  constitute  a  defense.  These  points  rest  in  the  ju- 
dicial decisions.  The  accused  must  show  that  when  the 
second  marriage  took  place,  neither  the  accused  nor  the  other 
party  to  the  marriage  was  at  that  time  lawfully  married. 

Divorce — Maybe  granted  for:  (i)  adultery;  (2)  fraudulent 
contract  ;  (3)  wilful  desertion  for  three  years,  with  total  neg- 
lect of  duty  ;  (4)  seven  years'  absence,  during  all  which  period 
the  absent  party  has  not  been  heard  from  ;  (5)  habitual  intem- 
perance ;  (6)  intolerable  cruelty  ;  (7)  sentence  to  imprison- 
ment for  life  ;  (8)  any  infamous  crime  involving  a  violation  of 
conjugal  duty  and  punishable  by  imprisonment  in  the  State 
prison.  Ninety  days  must  elapse  from  return  day  in  com- 
plaint before  petition  can  be  heard.  Three  years'  residence 
required. 

DAKOTA. 

By  Act  of  Congress  approved  on  the  22d  of  February,  1S89, 
Dakota  was  admitted  to  the  Federal  Union  as  two  States, 
to  be  known  as  North  Dakota  and  South  Dakota.     Constitu- 


206  'J HE   GEOGRAPHY  OF  MARRIAGE. 

tions  for  these  new  commonwealths  are  now  being  formulated. 
The  law  of  the  territory,  which  it  is  fair  to  presume  will  be  the 
law  of  the  States,  is  as  follows  : 

How  to  Marry. — Consent,  followed  by  solemnization  or 
mutual  assumption  of  matrimonial  duties  or  obligations,  con- 
stitutes marriage.  It  may  be  solemnized  by  a  justice  of  the 
Supreme  Court,  justice  of  the  peace,  a  mayor,  minister  of  the 
gospel,  or  priest  of  any  denomination  ;  or  parties  may  marry 
themselves.  Indians  may  be  married  by  the  peace-makers, 
their  agent,  or  superintendent  of  Indian  affairs.  No  particular 
form  is  necessary,  but  the  parties  must  declare  in  the  presence 
of  the  celebrant  and  of  at  least  one  witness,  that  they  take  each 
other  as  husband  and  wife.  The  celebrant  is  required  to 
ascertain  to  his  satisfaction  :  (i)the  identity  of  the  parties;  (2) 
their  real  and  full  names  and  places  of  residence  ;  (3)  that  they 
are  of  sufficient  age  to  contract ;  (4)  the  name  and  residence  of 
the  witness  or  two  witnesses,  if  more  than  one  is  present.  He 
must  enter  these  facts  also  in  a  book  kept  by  him.  He  must 
furnish  a  certificate  thereof  to  the  parties,  and  also  a  statement 
that  they  were  known  to  him  or  were  satisfactorily  proved  by 
the  oath  of  a  party  known  to  him  to  be  the  persons  described 
in  the  certificate,  and  that  after  due  inquiry  there  appeared  no 
lawful  impediment  to  the  marriage.  This  certificate  may 
within  six  months  be  filed  with  the  clerk  of  the  city  or  town 
where  the  marriage  was  solemnized  or  where  either  party 
resided,  or  the  register  of  deeds  of  the  county,  and  must  be 
recorded  by  such  officer.  [It  must  be  recorded  also  pursuant 
to  the  Act  of  Congress  in  the  Probate  Court. — See  note  foot  of 
page  194.]  Where  the  celebrant  is  a  minister  or  priest,  the 
certificate  must  also  be  accompanied  by  tlie  certificate  of 
a  magistrate  residing  in  the  same  town  or  county  with  the 
clerk,  that  such  celebrant  is  personally  known  to  the  magis- 
trate, and  has  acknowledged  the  execution  of  the  certificate  in 
his  presence,  or  that  its  execution  has  been  proved  to  him  by 
the  oath  of  a  person  known  to  the  magistrate,  who  saw  it 
executed. 


MARRIAGE  IN  THE  UNITED   STATES.  20/ 

Where  the  parties  marry  themselves,  they  must  make  a 
written  declaration  to  that  effect  showing  the  fact,  time,  and 
place  of  the  marriage  ;  the  names,  ages,  and  residences  of  the 
parties  ;  and  that  the  marriage  has  not  been  solemnized.  The 
declaration  must  be  proved  or  acknowledged  and  recorded  in 
like  manner  as  a  deed  to  land. 

Every  person  who  falsely  personates  another,  and  in  such 
assumed  character  marries  or  assumes  to  marry,  or  to  sustain 
the  marriage  relation  towards  another,  on  conviction  becomes 
liable  to  imprisonment  not  exceeding  ten  years. 

Marriage  of  Children. — Any  unmarried  male  of  the  age 
of  eighteen  years  or  upwards,  and  any  unmarried  female  of  the 
age  of  fifteen  years  or  upwards,  and  not  otherwise  disqualified, 
are  capable  of  contracting  and  consummating  marriage.  The 
celebrant  who  solemnizes  a  marriage,  where  either  party  is 
known  to  him  to  be  within  the  age  of  legal  consent,  is  guilty 
of  a  misdemeanor.  A  misdemeanor  is  punishable  by  imprison- 
ment not  exceeding  one  year,  or  by  fine  not  exceeding  $500,  or 
by  both  fine  and  imprisonment. 

Forbidden  Marriages  :  Relatives. — Marriage  between 
parents  and  children,  ancestors  and  descendants  of  every 
degree,  and  between  brothers  and  sisters  of  the  half  as  well  as 
of  the  whole  blood,  and  between  uncles  and  nieces,  or  aunts 
and  nephews,  and  between  cousins  of  the  half  as  well  as  of  the 
whole  blood,  are  incestuous  and  void  from  the  beginning, 
whether  the  relationship  is  legitimate  or  illegitimate.  The 
punishment  for  incest  is  imprisonment  not  exceeding  ten 
years. 

Bigamy. — A  person  having  a  husband  or  wife  living,  who 
marries  again,  is  guilty  of  bigamy,  unless  the  accused  can 
show,  either  that  the  former  husband  or  wife  has  been  absent 
five  successive  years  without  being  known  to  the  accused  to  be 
living  within  that  time,  or  has  been  continuously  without  the 
United  States  for  five  successive  years,  or  that  the  former 
marriage  has  been  pronounced  void,  annulled,  or  dissolved  by 
the  judgment  of  a  competent  court,  unless  such  marriage  was 


208  THE    GEOGRAPHY  OF  MARRIAGE. 

dissolved  upon  the  ground  of  the  adultery  of  the  accused. 
The  punishment  is  by  imprisonment  not  exceeding  five 
years. 

Every  person  knowingly  or  wilfully  marrying  the  husband 
or  wife  of  another  where  the  person  so  married  would  be 
guilty  of  bigamy,  is  punishable  by  imprisonment  not  exceeding 
five  years  in  territorial  prison,  or  not  exceeding  one  year 
in  county  jail  ;  or  by  fine  not  exceeding  $500,  or  by  both  fine 
and  imprisonment. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  extreme 
cruelty  ;  (3)  conviction  for  felony  ;  (4)  for  either  wilful  deser- 
tion, wilful  neglect,  or  habitual  intemperance  continuing  for 
one  year  preceding  the  suit.  Ninety  days'  residence  required. 
Guilty  party  can  not  marry  any  person  except  innocent  party, 
until  death  of  innocent  party. 

DELAWARE. 

Delaware  legislation  makes  it  incumbent  upon  the  groom  to 
give  bonds  to  the  State  in  the  penal  sum  of  $200  upon  apply- 
ing for  his  marriage  license,  unless  the  banns  have  been  pub- 
lished in  the  church  in  the  locality  where  the  bride  resides  at 
least  two  Sabbaths,  and  no  objections  have  been  made.  Wed- 
dings in  almshouses  are  prohibited,  and  if  a  pauper  marries 
he  shall  be  dismissed  and  the  State  will  be  deprived  of  his  ser- 
vices, and  parties  aiding  therein  become  liable  to  a  fine  of  $50. 

How  to  Marry. — Whether  or  not  a  marriage  license  will 
be  required  will  depend  upon  whether  the  banns  of  marriage 
have  been  published,  or  whether  the  person  is  a  white  person. 
If  the  banns  shall  have  been  published  at  some  place  of 
stated  religious  worship,  within  the  hundred  of  the  woman's 
residence,  on  two  Sabbaths,  immediately  after  divine  service, 
and  no  objection  be  made  to  such  marriage,  a  license  will 
not  be  required.  Every  preacher  of  the  gospel,  ordained 
or  appointed  according  to  the  rules  of  the  church  to 
which  he  belongs,  and  the  mayor  of  the  city  of  Wilmington 
and  the  city  of  New  Castle  have  authority  to  solemnize 
marriages.     It  may  also  be  solemnized  or  contracted  accord- 


MARRIAGE  IN  THE  UNITED    STATES.  209 

ing  to  the  forms  and  usage  of  any  religious  society  where 
either  of  the  parties  belongs.  But  unless  the  banns  have  been 
published  as  above  stated,  such  preacher  or  mayor  shall  not 
solemnize  a  marriage  to  which  a  white  person  is  a  party, 
without  a  license.  It  must  be  issued  by  the  clerk  of  the 
peace  in  the  county,  who  must  collect  a  fee  of  $4  therefor  for 
the  use  of  the  State.  He  has  power  also  to  appoint  justices  of 
the  peace  in  his  county,  not  less  than  six,  to  distribute  marriage 
licenses,  and  it  shall  not  be  lawful  for  any  other  person  than 
such  clerk  or  justice  to  distribute  them.  The  clerk  or  justice 
shall  take  from  the  applicant  a  bond  to  the  State  of  Delaware 
in  the  penal  sum  of  $200,  containing  this  condition  :  "  The 
condition  of  this  obligation  is  such  that  if  Romeo  Ardent  and 
Juliet  Lightwing  [naming  prospective  bride  and  groom]  may 
lawfully  unite  themselves  in  marriage,  and  if  there  be  no  legal 
objection  to  celebrating  the  rites  of  marriage  between  them, 
then  the  said  obligation  shall  be  void  ;  otherwise,  in  force." 
All  bonds  must  be  filed  in  the  clerk's  office  in  alphabetical 
order.     The  fee  for  solemnizing  a  marriage  shall  be  $1.50. 

Every  preacher,  mayor,  and  religious  society  shall  keep  a 
record  of  all  marriages  and  the  date  thereof,  and  shall  every 
three  months  return  every  marriage  certificate  to  the  recorder 
of  deeds  of  the  county  where  the  marriage  was  celebrated, 
who  shall  record  and  file  the  same  according  to  dates,  and  for 
failure  to  do  so  shall  forfeit  f  20.  If  any  person  not  authorized 
as  above  shall  falsely  solemnize  a  marriage,  he  is  guilty  of  a 
misdemeanor,  and  liable  to  a  fine  of  $500,  and  such  marriage 
shall  be  void,  unless  it  be  in  other  respects  lawful,  and  be  con- 
summated with  the  full  belief  of  either  of  the  parties  in  its 
validity.  Negroes  or  mulattoes  may  be  married  without 
license  or  publication  of  banns. 

Marriage  of  Children. — A  marriage,  if  the  male  be  under 
twenty-one  years,  or  the  female  under  eighteen,  shall  not  be 
solemnized  without  the  consent  of  the  father,  or,  if  there  be  no 
father,  the  mother  or  guardian  of  the  minor  ;  and  any  person 
knowingly  and  wilfully  solemnizing  such  marriage,  without 
such  consent,  shall  be  liable  in  damages  to  the  party  aggrieved. 


210  THE    GEOGRAPHY   OF  MARRIAGE. 

But  a  divorce  will  not  be  granted  on  the  ground  of  want  of  age, 
unless  it  is  shown  that  the  husband  was  under  eighteen  and  the 
wife  under  sixteen,  and  the  marriage  after  the  parties  passed 
those  ages  was  not  voluntarily  ratified. 

Forbidden  Marriages  :  Incest ;  Miscegenation. — No 
man  shall  marry  his  grandmother,  grandfather's  wife,  wife's 
grandmother,  father's  sister,  motlier's  sister,  son's  wife,  sister's 
son's  daughter,  daughter's  daughter,  son's  son's  wife,  daughter's 
son's  wife,  mother,  step-mother,  wife's  mother,  daughter,  wife's 
daughter,  wife's  son's  daughter,  wife's  daughter's  daughter, 
brother's  daughter,  sister's  daughter.  No  woman  shall  marry 
her  relative  or  connection  corresponding  with  either  of  the 
foregoing  prohibitions.  And  if  such  marriage  be  solemnized, 
it  shall  be  void,  and  the  parties  deemed  guilty  of  a  misde- 
meanor and  fined  $ioo.  The  celebrant  or  other  person  aiding 
it  shall  be  liable  to  same  fine.  If  such  marriage  is  contracted 
elsewhere,  and  the  parties  come  into  Delaware  and  live  as  hus- 
band and  wife,  they  are  liable  to  the  same  fine. 

Marriage  is  unlawful  between  a  white  person  and  a  negro 
or  mulatto,  and  shall  be  void  ;  and  the  parties  solemnizing 
or  aiding  shall  be  liable  to  same  penalty.  If  such  persons 
marry  elsewhere  and  come  into  Delaware  they  are  liable  to 
such  fine. 

If  any  pauper  supported  in  the  almshouse  shall  marry,  he 
shall  be  dismissed.  If  the  overseer  consent  to  such  marriage 
he  shall  be  removed,  and  the  minister  knowingly  solemnizing 
it  shall  be  fined  $50. 

Bigamy. — If  any  person  having  contracted  marriage  shall 
in  the  life-time  of  his  or  her  husband  or  wife  marry  another, 
or  if  any  unmarried  person  shall  marry  with  a  person  having 
at  the  time  a  luisband  or  wife  living,  and  such  fact  be  known 
to  such  unmarried  person,  he  or  she  shall  be  deemed  guilty  of 
bigamy,  unless  the  accused  can  show  that  the  husband  or  wife 
at  the  time  of  the  second  marriage  shall  have  been  absent 
five  years,  and  during  that  time  the  accused  shall  have  received 
no  intelligence  of  his  or  her  being  alive  ;  or  if  there  shall  have 


MARRIAGE  IN  THE  UNITED   STATES.  211 

been  other  good  ground  to  believe  the  former  husband  or  wife 
dead,  or  the  former  marriage  shall  have  been  dissolved.  The 
punishment  is  by  fine  not  less  than  $400  nor  more  than  |!2,ooo, 
and  imprisonment  not  less  than  three  months  nor  more  than 
one  year. 

Any  inliabitant  of  Delaware  who  goes  out  of  the  State  and 
commits  bigamy,  with  intent  to  return,  and  shall  return,  he 
shall  be  deemed  guilty,  and  on  conviction  punished  as  above. 

Divorce. — The  peculiar  rule  of  Delaware  law  with  respect 
to  foreign  divorces,  declares  that  when  an  inhabitant  of  Dela- 
ware goes  out  of  the  State  to  obtain  a  divorce  for  any  cause 
occurring  in  Delaware,  or  for  any  cause  not  authorized  by  the 
laws  of  Delaware,  a  divorce  so  obtained  shall  be  of  no  force  or 
effect  in  Delaware.  In  all  other  cases,  if  the  court  had  juris- 
diction of  the  subject-matter,  and  of  both  parties,  a  divorce 
lawfully  granted  elsewhere  will  be  valid. 

The  grounds  for  divorce  absolute  are  :  (1)  adultery  ;  (2) 
desertion  for  three  years  ;  (3)  drunkenness  ;  (4)  impotency  of 
either  party  at  time  of  marriage  ;  (5)  extreme  cruelty  ;  (6) 
conviction  in  or  out  of  State,  after  marriage,  for  felony, 
whether  the  crime  was  committed  before  or  after  the  marriage, 
Divorce  from  bed  and  board  may  be  decreed  in  discretion  of 
court  for  :  (i)  procurement  of  marriage  by  fraud  ;  (2-)  want  of 
age,  where  husband  was  under  eighteen,  or  wife  under  sixteen, 
on  wedding-day,  and  it  appears  there  was  no  voluntary  ratifica- 
tion after  those  ages  were  reached  ;  (3)  neglect  to  provide  for 
wife  necessaries  suitable  to  her  condition  for  three  years. 

FLORIDA. 

Marriage  laws  of  Florida  since  1866  have  been  made  general, 
and  apply  equally  to  the  white  and  colored  inhabitants  of  the 
State.  Clandestine  marriages  subject  the  parties  to  severe 
penalties.  Children  born  out  of  wedlock  become  legitimate 
by  the  subsequent  marriage  of  their  parents. 

How  to  Marry. — All  regularly  ordained  ministers  of  the 
gospel  in  communion  with  some  church,  judges  of  the  Circuit 


212  THE    GEOGRAPHY   OF  MARRIAGE. 

Courts,  judges  of  the  County  Court,  notaries  public,  and  jus- 
tices of  the  peace  are  authorized  to  solemnize  the  rites  of  the 
matrimonial  contract,  but  must  before  doing  so  require  of  the 
parties  a  marriage  license.  Prior  to  June,  1887,  licenses  were 
issued  by  the  clerk  of  the  Circuit  Court  of  the  county  where 
the  bride  resided,  but  since  May  27,  1887,  all  marriage  li- 
censes are  required  to  be  issued  by  the  county  judges  of 
Florida,  and  after  the  marriage  is  solemnized  such  licenses  shall 
be  returned,  under  the  certificate  of  the  person  who  executed 
the  same,  within  ten  days  after  its  execution,  to  the  office  of 
the  judge  who  issued  it,  and  shall  be  by  him  recorded  in  the 
record  of  marriage  licenses.  The  judge  for  issuing  the  license 
is  entitled  to  a  fee  of  %2.  If  the  celebrant  shall  fail  to  require 
the  production  of  such  license  he  shall  be  subject  to  a  fine  of 
not  more  than  $1,000  in  the  discretion  of  the  court. 

Marriage  of  Children. — If  either  applicant  is  under  the 
age  of  twenty-one,  and  has  not  before  been  married,  the  judge 
must  require  satisfactory  evidence  of  the  consent  of  his  or  her 
guardian  before  issuing  a  license.  The  celebrant  must,  before 
performing  the  ceremony,  require  the  production  of  such 
license,  and  for  failure  to  do  so,  on  conviction,  shall  be  sub- 
ject to  a  fine  of  not  more  than  $1,000  in  the  discretion  of  the 
court. 

Whoever  fraudulently  and  deceitfully  entices  or  takes  away 
any  unmarried  female,  under  the  age  of  sixteen  years,  from  her 
father's  house,  or  wherever  else  she  may  be  found,  without  the 
consent  of  the  parent,  guardian,  or  master,  if  any,  under  whose 
care  or  custody  she  is  living,  for  the  purpose  of  effecting  a 
clandestine  marriage  of  such  female,  without  such  consent, 
shall  be  imprisoned  not  exceeding  one  year,  or  fined  not  ex- 
ceeding $1,000,  or  both  fined  and  imj)risoncd. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
Persons  within  the  degrees  of  consanguinity,  within  which 
marriages  are  prohibited  or  declared  by  law  to  be  incestuous 
and  void,  who  intermarry,  shall  be  i)unishcd  by  imprisonment 
in  the  State  penitentiary  not  exceeding  twenty  years,  or  in  the 


MARRIAGE  IN  THE  UNITED   STATES.  21 3 

county  jail  not  exceeding  one  year.  The  statute  does  not 
define  the  degrees  of  consanguinity  covered  by  the  prohibi- 
tion. Hence  the  better  opinion  is  that  the  prohibition  em- 
braces such  marriages  as  are  forbidden  by  the  Levitical  law. 

If  any  white  man  shall  intermarry  with  a  negro,  mulatto,  or 
any  person  who  has  one  eighth  of  negro  blood  in  her,  or  if  any 
white  woman  shall  intermarry  with  a  negro,  mulatto,  or  any 
person  who  has  one  eighth  of  negro  blood  in  him,  is  guilty  of 
felony,  and  on  conviction  shall  be  fined  not  more  than  $1,000 
nor  less  than  $50,  or  imprisoned  not  more  than  ten  years  nor 
less  than  six  months  at  the  discretion  of  the  court.  For 
issuing  a  license  to  such  persons  the  fine  is  not  less  than  $50 
nor  more  than  $1,000,  or  imprisonment  not  less  than  three 
months  nor  more  than  two  years  ;  and  the  celebrant  may  be 
fined  not  exceeding  $1,000  or  imprisoned  not  more  than  one 
year,  or  both,  in  the  discretion  of  the  court. 

Bigamy. — Whoever,  having  a  former  husband  and  wife 
living,  marries  another,  is  guilty  of  polygamy,  and  may  be 
imprisoned  in  penitentiary  not  exceeding  five  years,  or  in  the 
county  jail  not  exceeding  one  year,  or  fined  not  exceeding 
$500,  unless  the  accused  can  show  that  his  or  her  husband  or 
wife  has  been  continually  beyond  sea,  or  has  voluntarily  with- 
drawn and  remained  absent  for  three  years,  the  accused  not 
knowing  such  absent  one  to  be  living  within  that  time,  or  that 
the  accused  has  been  legally  divorced,  and  is  not  the  guilty 
cause  of  the  divorce. 

Divorce. — Maybe  granted  upon  the  following  grounds  :  (i) 
parties  related  within  degrees  forbidding  marriage  ;  (2)  im- 
potency  ;  (3)  adultery  ;  (4)  bigamy  (divorce  for  this  cause 
does  not  render  children  illegitimate)  ;  (5)  extreme  cruelty  of 
either  party  ;  (6)  habitual  indulgence  of  violent  and  ungovern- 
able temper  ;  (7)  habitual  intemperance  ;  (S)  wilful,  obstinate, 
and  continued  desertion  by  either  party  for  one  year.  Two 
years'  residence  required.  A  citizen  of  Florida,  who  has  been 
such  for  two  years,  may  procure  a  divorce,  notwithstanding 
his  or  her  husband  or  wife  may  have  obtained  divorce  in  an- 


214  ^^^   GEOGRAPHY  OF  MARRIAGE. 

Other  State  or  country.  This  law  is  designed,  no  doubt,  to 
cure  defects  and  remove  doubts  concerning  the  divorce  in  the 
foreign  state.  The  parties  may  be  witnesses,  but  the  divorce 
cannot  be  granted  on  testimony  of  a  husband  or  wife  alone. 

GEORGIA. 

Matrimony  is  especially  commended  by  the  statutes  of 
Georgia,  which  declare  in  so  many  words  that  marriage  is 
encouraged  by  law,  and  every  effort  to  restrain  or  discourage 
marriage  by  contract,  condition,  limitation,  or  otherwise,  is 
invalid  and  void.  And  if  a  man  or  woman  is  indebted  to  the 
other,  and  they  marry,  the  marriage  releases  the  debt,  unless 
it  is  contracted  in  contemplation  of  such  union,  as  a  marriage 
settlement.  All  marriages  solemnized  .in  another  State  by 
parties  intending  at  the  time  to  reside  in  Georgia  shall  have 
the  same  legal  consequences  and  effect  as  if  solemnized  in 
Georgia.  It  is  expressly  declared,  also,  that  parties  residing 
in  Georgia  cannot  evade  any  of  the  provisions  of  its  laws  as  to 
marriage  by  going  into  another  State  to  marry. 

How  to  Marry. — The  provisions  of  law  as  to  procuring  a 
marriage  license  has  been  held  by  the  courts  to  be  simply  de- 
claratory, and  failure  to  comply  with  them  will  not  invalidate 
the  marriage.  To  constitute  a  valid  marriage  in  Georgia  the 
bride  and  groom  must  be  able  to  contract  ;  there  must  have 
been  an  actual  contract  between  them,  consummated  accord- 
ing to  law.  The  groom  must  be  not  under  seventeen,  and  the 
bride  not  under  fourteen.  They  must  be  of  sound  mind,  there 
must  be  no  prior  marriage  existing  as  to  either  undissolved, 
and  they  must  not  be  related  by  blood  or  marriage,  as  men- 
tioned below.  Neither  must  be  afflicted  with  impotency.  The 
consent  must  be  voluntary,  and  without  fraud  practised  upon 
either.  Drunkenness  at  the  time  of  marriage,  brought  about 
by  art  or  contrivance  to  induce  consent,  shall  be  held  a  fraud. 
Marriages  of  persons  unable  or  unwilling  to  contract,  or 
fraudulently  induced  to  contract,  are  void  ;  but  issue,  before 
Ihcy  arc  declared  void  by  a  competent  court,  are  legitimate. 


MARRIAGE  IN  THE  UNITED    STATES.  21 5 

If  there  has  been  unwillingness  or  fraud,  subsequent  coi^sent 
and  ratification  freely  and  voluntarily  made,  accompanied  by 
cohabitation,  makes  the  marriage  valid.  Marriage  may  be 
solemnized  by  any  judge,  justice  of  the  peace,  or  minister  of 
the  gospel,  and  licenses  shall  be  granted  directed  to  such 
persons  by  the  ordinary  or  his  deputy  of  the  county  where  the 
bride  resides,  if  she  lives  in  Georgia.  The  license  must  require 
the  celebrant  to  return  it  to  the  ordinary,  with  his  certificate 
thereon  as  to  the  fact  and  date  of  marriage,  and  it  shall  be 
recorded  "  Marriage  of  persons  whose  banns  have  been  pub- 
lished," shall  be  certified  to  the  ordinary  of  the  county  where 
such  banns  were  published,  who  shall  record  the  same  in  the 
same  book  with  marriage  licenses. 

For  marrying  persons  without  a  license,  or  whose  banns 
have  not  been  published,  or  where  either  party  within  his 
knowledge  is  an  idiot,  lunatic,  or  subject  to  any  other  legal 
disability,  the  celebrant  shall  forfeit  $500,  or  may  be  convicted 
of  a  misdemeanor,  and  punished  by  a  fine  not  exceeding 
$1,000,  or  imprisonment  not  exceeding  six  months,  or  to  work 
in  the  chain-gang  not  exceeding  twelve  months,  or  any  one  or 
more  of  these  punishments. 

Upon  request,  the  ordinary  may  direct  the  marriage  license 
to  any  Jewish  minister,  or  other  person  of  any  religious  society 
or  sect,  authorized  by  the  rules  of  such  society  to  perform  the 
marriage  ceremony,  who  shall  make  return  thereon  as  above 
required. 

A  marriage  valid  in  other  respects,  and  supposed  by  the 
parties  to  be  valid,  shall  not  be  affected  by  a  want  of  authority 
in  the  minister  or  justice  to  solemnize  the  same  ;  nor  shall 
such  objection  be  heard  froni  one  party  who  has  fraudulently 
induced  the  other  to  believe  that  the  marriage  was  legal.  The 
ordinary  or  his  deputy  must  inquire  as  to  ages  of  all  persons 
for  whom  licenses  are  asked,  and  if  there  is  ground  for 
suspicion  that  the  female  is  under  eighteen,  he  must  refuse  the 
license  until  written  consent  of  parent  or  guardian  shall  be 
produced  and  filed.    For  knowingly  granting  a  license  without 


2l6  THE   GEOGRAPHY  OF  MARRIAGE. 

such  consent,  or  without  inquiry  into  the  facts,  or  to  a  female 
to  his  knowledge  domiciled  in  another  county,  he  shall  forfeit 
$500. 

Marriage  of  Children. — Males  under  the  age  of  seventeen 
and  females  under  the  age  of  fourteen  are  unable  to  contract 
marriage,  and  their  marriages  are  void  ;  but  children  born 
before  the  same  are  so  declared  by  the  court,  are  legitimate. 
The  ordinary,  or  his  deputy,  who  knowingly  grants  a  license  to 
such,  without  inquiring  into  the  fact  as  to  age,  or  without  the 
written  consent  of  parent  or  guardian  filed  in  his  office,  shall 
forfeit  $500. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
A  man  shall  not  marry  his  step-mother,  or  mother-in-law,  or 
daughter-in-law,  or  step-daughter,  or  granddaughter  of  his 
wife.  A  woman  shall  not  marry  her  corresponding  relatives. 
If  any  person  shall  intermarry  within  the  Levitical  degrees  of 
consanguinity  or  within  any  of  the  relationships  by  affinity, 
such  marriage  shall  be  void,  and  is  punishable  by  imprison- 
ment and  labor  for  not  less  than  one  nor  more  than  three 
years. 

The  marriage  relation  between  white  persons  and  persons 
of  African  descent  is  forever  prohibited,  and  such  marriages 
shall  be  null  and  void.  If  any  officer  shall  knowingly  issue  a 
license  to  parties,  either  of  whom  is  of  African  descent  and  the 
other  a  white  person,  or  if  any  ofiicer  or  minister  shall  marry 
such  persons,  it  is  a  misdemeanor,  punishable  in  the  same  way 
as  in  cases  where  the  marriage  is  without  a  license,  or  where 
the  banns  have  not  been  published. 

Bigamy. — If  any  person  or  persons,  being  married,  marry 
any  person  or  persons,  the  lawful  husband  or  wife  being  alive, 
and  knowing  that  such  lawful  husband  or  wife  is  living,  such 
marriage  shall  be  void,  and  shall  be  punishable  by  confine- 
ment at  labor  in  the  penitentiary  for  not  less  than  two  nor  more 
than  four  years  ;  but  five  years'  absence  of  the  husband  or 
wife,  and  no  information  of  the  fate  of  such,  shall  be  suffi- 
cient cause  of  acquittal.     But  the  children  of  such  bigamous 


MARRIAGE  IN  THE  UNITED   STATES.  21/ 

marriage,  born  before  the  prosecution,  or  within  the  ordinary 
term  of  gestation  thereafter,  shall  be  deemed  legitimate.  And 
if  any  man  or  woman  unmarried,  shall  knowingly  marry  the 
husband  or  wife  of  another,  the  punishment  is  imprisonment 
for  not  less  than  one  nor  more  than  three  years. 

Divorce. — May  be  absolute  or  limited.  Grounds  of  abso- 
lute divorce  are  :  (i)  marriage  within  prohibited  degrees  ;  (2) 
mental  incapacity  at  time  of  marriage  ;  (3)  impotency  at  time 
of  marriage  ;  (4)  force,  menace,  duress,  or  fraud  in  obtaining 
marriage  ;  (5)  pregnancy  at  time  of  marriage  unknown  to 
husband  ;  (6)  adultery  ;  (7)  desertion  by  either,  wilful  and 
continued  for  three  years  ;  (8)  conviction  of  an  offense  in- 
volving moral  turpitude,  and  sentence  to  penitentiary  two 
years  or  longer.  Limited  divorce  may  be  had  for  any  cause 
sufficient  in  England  prior  to  May  4,  1784. 

In  case  of  cruelty  or  intoxication  of  either  party,  the  jury 
may  grant  either  an  absolute  or  limited  divorce.  The  con- 
current verdict  of  two  juries  at  different  terms  of  court  is 
necessary  for  divorce  absolute  ;  but  a  limited  divorce  may  be 
had  on  verdict  of  one  jury.  The  jury  rendering  the  final  ver- 
dict shall  determine  the  rights  and  disabilities  of  the  parties. 

IDAHO. 

If  either  party  is  incapable  of  consent  for  want  of  age,  of 
understanding,  or  from  physical  causes  of  entering  into  the 
married  state  ;  or  if  such  consent  is  obtained  by  fraud  or  force, 
it  is  ground  to  have  the  marriage  annulled,  but  it  will  be 
deemed  valid  until  so  annulled.  Marriages  contracted  out  of 
Idaho,  if  valid  where  contracted,  are  valid  in  Idaho. 

How  to  Marry. — Marriage  must  be  solemnized,  authenti- 
cated, and  recorded  in  the  mode  prescribed  by  the  statute,  but 
non-compliance  with  the  provisions  of  the  statute  will  not 
invalidate  any  lawful  marriage.  Consent  alone  will  not  con- 
stitute marriage  ;  it  must  be  followed  by  a  solemnization  or  by 
a  mutual  assumption  of  marital  rights,  duties,  or  obligations. 
Any  unmarried  male  of  the   age  of  eighteen  or  upwards  and 


2l8  THE   GEOGRAPHY  OF  MARRIAGE. 

any  unmarried  female  of  the  age  of  sixteen  or  upwards,  not 
otherwise  disqualified,  are  capable  of  contracting  and  consum- 
mating marriage.  Consent  to,  and  consequent  consummation 
of  marriage,  may  be  manifested  in  any  form,  and  may  be 
proved  as  facts  in  other  cases. 

Marriage  may  be  solemnized  by  a  justice  of  the  Supreme 
Court,  district  or  probate  judge,  the  governor,  a  justice  of  the 
peace,  mayor,  priest  or  minister  of  the  gospel  of  any  denomi- 
nation. No  particular  form  for  the  ceremony  is  required,  but 
the  parties  must  declare,  in  the  presence  of  the  celebrant,  that 
they  take  each  other  as  husband  and  wife.  The  celebrant  may 
administer  oaths  and  examine  the  parties  and  witnesses  to 
satisfy  himself  that  the  parties  are  legally  qualified  to  marry. 
He  must  be  assured  of  the  identity  of  the  parties,  their  real 
and  full  names  and  places  of  residence,  and  that  they  are  of 
sufficient  age  to  be  capable  of  contracting  marriage. 

Every  celebrant  must  make  a  record  of  the  marriage,  and 
within  thirty  days  thereafter  must  deliver,  to  the  recorder  of 
the  county  where  the  marriage  took  place,  a  certificate  under 
his  hand,  containing  the  names  and  residences  of  the  parties, 
and  of  at  least  two  witnesses  present,  and  of  the  time  and 
place  of  such  marriage ;  and  when  consent  of  parent  or 
guardian  is  necessary,  stating  that  it  is  duly  given.  The 
recorder  must  record  the  certificate,  and  demand  fee  of  $i. 
For  failure  to  deliver  certificate,  or  for  failure  to  record  same, 
the  celebrant  or  recorder,  as  the  case  may  be,  must  forfeit  $20. 
[It  must  be  recorded  also,  pursuant  to  the  Act  of  Congress,  in 
the  Probate  Court.  See  note  foot  of  page  194.]  Celebrant 
is  entitled  to  fee  of  $5,  but  may  receive  any  greater  sum 
voluntarily  given. 

Wilfully  making  a  false  return  of  a  marriage  or  pretended 
marriage,  or  wilfully  making  a  false  record  of  any  return,  is  a 
felony,  and  is  punishable  by  imprisonment  not  exceeding  five 
years,  or  by  fine  not  exceeding  $5,000,  or  by  both  fine  and 
imprisonment. 

Whoever  falsely  personates  another,  and  in  such  assumed 


MARRIAGE  IN  THE  UNITED   STATES.  219 

character  marries,  or  pretends  to  marry,  or  to  sustain  the 
marriage  relation  towards  another,  with  or  without  the  con- 
nivance of  such  other,  is  guilty  of  a  felony. 

Taking  a  woman  unlawfully  and  against  her  will,  and  by 
force,  menace,  or  duress  compelling  her  to  marry  him,  or  to 
marry  any  other  person,  or  to  be  defiled,  is  punishable  by 
imprisonment  not  less  than  two  nor  more  than  fourteen  years. 

No  marriage  solemnized  by  any  person  professing  to  be  a 
judge,  justice,  or  minister,  is  deemed  void  on  account  of  want 
of  jurisdiction  or  authority,  if  consummated  with  full  belief 
on  part  of  the  parties,  or  one  of  them,  that  they  have  been  law- 
fully joined  in  marriage. 

Every  person  who  undertakes  or  pretends  to  join  others  in 
marriage,  knowing  he  is  not  authorized  to  do  so,  or  knowing 
of  any  legal  impediment  thereto,  is  guilty  of  misdemeanor  ; 
and  is  punishable  by  imprisonment  in  county  jail  not  exceed- 
ing six  months,  or  by  fine  not  exceeding  $300,  or  by  both  fine 
and  imprisonment. 

Marriage  of  Children. — Any  unmarried  male  of  the  age 
of  eighteen,  and  any  unmarried  female  of  the  age  of  sixteen, 
and  not  otherwise  disqualified,  are  capable  of  consenting  to 
and  consummating  marriage.  A  marriage  by  persons  under 
those  ages,  without  consent  of  parents  or  guardian,  may  be 
annulled  by  the  court,  but  it  is  a  good  marriage  until 
annulled  ;  but  a  voluntary  ratification  after  reaching  the  age 
of  consent  will  render  the  marriage  valid.  Whoever  under- 
takes to  joins  persons  in  marriage,  knowing  of  any  legal 
impediment  thereto,  such  as  infancy  or  non-age,  is  guilty  of  a 
misdemeanor,  and  may  be  imprisoned  not  exceeding  six 
months,  or  fined  not  exceeding  $300,  or  both  fined  and 
imprisoned. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
Marriages  between  parents  and  children,  ancestors,  and 
descendants  of  every  degree,  and  between  brothers  and  sisters 
of  the  half  as  well  as  the  whole  blood,  and  between  uncles 
and  nieces  and  aunts  and  nephews,  are  incestuous  and  void 


220  THE   GEOGRAPHY  OF  MARRIAGE. 

from  the  beginning,  whether  the  relationship  is  legitimate  or 
illegitimate.  The  punishment  is  imprisonment  not  more  than 
ten  years. 

All  marriages  of  white  persons  with  negroes  or  mulattoes  are 
illegal  and  void. 

Bigamy. — A  subsequent  marriage  contracted  by  any  per- 
son during  the  life  of  a  former  husband  or  wife,  is  illegal  and 
void  from  the  beginning,  unless  the  former  marriage  has  been 
annulled,  or  the  former  husband  or  wife  was  absent  and  not 
known  to  the  accused  to  be  living  for  five  successive  years  ; 
or  was  generally  reputed,  and  believed  by  such  person  to  be 
dead  ;  and  in  either  case  the  second  marriage  is  valid  until  it 
is  annulled  by  the  court.  The  punishment  for  bigamy  is  by 
fine  not  exceeding  $ioo,  and  imprisonment  not  less  than  one 
nor  more  than  five  years.  And  if  the  second  marriage  takes 
place  .without  the  territory  of  Idaho,  cohabitation  within  the 
territory,  after  such  second  marriage,  constitutes  the  crime  of 
bigamy.  Any  unmarried  person  marrying  one  already  married 
knowingly,  the  penalty  is  by  fine  not  less  than  $i,ooo,  or  by 
imprisonment  not  less  than  one  nor  more  than  two  years. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  extreme 
cruelty  ;  (3)  wilful  desertion,  wilful  neglect,  or  habitual  intem- 
perance for  one  year  ;  (4)  conviction  of  felony.  Six  months' 
residence  required, 

ILLINOIS. 

Illinois  statutes  declare  what  is  understood  without  express 
declaration, — that  no  insane  person  or  idiot  shall  be  capable 
of  contracting  marriage.  A  child  born  out  of  wedlock,  whose 
parents  afterwards  marry,  and  whose  father  has  acknowledged 
the  child,  shall  be  deemed  legitimate.  An  effort  is  being 
made  to  amend  the  law  so  as  to  prohibit  divorced  persons 
from  marrying  again  within  the  time  fixed  by  the  court,  which 
shall  not  be  less  than  one  nor  more  than  ten  years,  and  making 
a  violation  of  the  decree  bigamy. 


MARRIAGE  IN  THE  UNITED   STATES.  221 

How  to  Marry. — The  parties  must  obtain  a  license  from 
the  county  clerk  of  the  county  where  the  wedding  is  to  take 
place.     The  form  of  the  license  is  prescribed  in  the  statute. 

For  the  purpose  of  ascertaining  ages,  the  county  clerk  may 
examine  either  party  or  witnesses  under  oath.  The  marriage 
may  be  celebrated  by  a  minister  of  the  gospel  in  regular 
standing,  a  judge  of  any  court  of  record,  a  justice  of  the  peace, 
or  any  superintendent  of  any  public  institution  for  the  educa- 
tion of  the  deaf  and  dumb  in  Illinois.  Quakers  may  be  mar- 
ried by  making  known  their  intentions  to  a  standing  committee 
of  an  official  meeting  at  least  one  week  before  the  wedding, 
and  by  appearing  in  a  public  meeting  or  private  gathering  be- 
fore official  witnesses  of  said  body,  with  a  certificate  setting 
forth  the  names  and  residences  of  the  bride  and  groom  and 
parents  of  each,  if  living,  and  the  official  witnesses,  which  shall 
be  publicly  read  by  one  of  the  witnessing  parties,  and  duly 
recorded  in  the  records  of  the  society.  All  persons  belonging 
to  any  religious  society,  church,  or  denomination  may  cele- 
brate their  marriage  according  to  the  rules  and  principles  of 
such  religious  society,  church,  or  denomination.  Whoever 
celebrates  the  marriage  must  within  thirty  days  make  certificate 
thereof,  and  return  it  with  the  license,  if  one  has  been  issued,  to 
the  clerk  of  the  county  where  the  wedding  took  place  ;  and  for 
failure  to  do  so,  the  celebrant  shall  forfeit  ^loo.  The  county 
clerk  must  register  the  same  ;  and  for  neglect  so  to  do  for  thirty 
days  (his  fees  being  paid)  he  shall  forfeit  $ioo.  For  celebrat- 
ing a  marriage  without  a  license  the  penalty  is  $ioo  for  each 
offense. 

Marriage  of  Children. — Male  persons  over  seventeen 
and  females  over  fourteen  may  contract  and  be  joined  in 
marriage.  But  if  any  county  clerk  shall  issue  a  license  for  the 
marriage  of  a  man  under  twenty-one,  or  a  woman  under 
eighteen,  without  the  consent  of  his  or  her  father,  or,  if  he  is 
dead  or  incapable,  or  not  residing  with  his  family,  of  his  or 
her  mother  or  guardian,  if  he  or  she  has  one,  he  shall  forfeit 
$300  to  such  parent  or  guardian. 


222  THE   GEOGRAPHY  OF  MARRIAGE. 

Forbidden  Marriages  :  Relatives. — Marriages  between 
parents  and  children,  including  grandparents  and  grand- 
children of  every  degree,  between  brothers  and  sisters  of  the 
half  as  well  as  of  the  whole  blood,  and  between  uncles  and  nieces, 
aunts  and  nephews,  and  between  cousins  of  the  first  degree, 
are  declared  to  be  incestuous  and  void.  And  this  prohibition 
extends  to  illegitimate  as  well  as  legitimate  children  and  rela- 
tions. The  punishment  is  imprisonment  not  exceeding  ten 
years  ;  and  the  persons  convicted  shall  be  deemed  infamous, 
and  shall  forever  thereafter  be  rendered  incapable  of  holding 
any  office  of  honor,  trust,  or  profit,  of  voting  at  any  election, 
or  serving  as  a  juror,  unless  restored  to  his  rights  by  a  pardon 
or  otherwise  according  to  law. 

Bigamy. — Whoever,  having  a  former  husband  or  wife  liv- 
ing, marries  another,  or  lives  with  such  second  husband  and 
wife  in  Illinois,  is  guilty  of  bigamy,  unless  the  accused  can 
show  that  his  or  her  wife  or  husband  has  been  continually 
absent  for  five  years  together  prior  to  the  second  marriage, 
and  the  accused  did  not  know  such  husband  or  wife  to  be 
living  during  that  time,  or  that  the  accused  has  been  lawfully 
divorced,  or  the  prior  marriage  annulled.  The  punishment  is 
imprisonment  not  less  than  one  nor  more  than  five  years,  and 
a  fine  not  exceeding  $i,ooo,  and  the  person  convicted  shall  be 
deemed  forever  infamous,  and  barred  from  voting  or  holding 
any  office,  unless  such  person  shall  be  restored  to  such  rights 
by  a  pardon  or  according  to  law. 

If  any  unmarried  person  knowingly  marries  the  husband  or 
wife  of  another,  the  punishment  is  by  fine  not  more  than  $500 
or  imprisonment  in  the  county  jail  not  exceeding  one  year,  or 
both  fine  and  imprisonment. 

Divorce. — Maybe  granted  for:  (i)  impotency;  (2)  adultery  ; 
(3)  on  the  ground  that  another  husband  or  wife  was  living  at 
time  of  marriage  ;  (4)  desertion  for  two  years  Avithout  rea- 
sonable cause  ;  (5)  habitual  drunkenness  for  two  years  ;  (6)  an 
attempt  on  the  life  of  the  other  by  poison,  or  other  means 
showing  malice  ;  (7)  extreme  and  repeated  cruelty  ;  (S)  con- 


MARRIAGE  IN  THE  UNITED   STATES.  223 

viction  of  felony  or  other  infamous  crime.  One  year's  resi- 
dence required.  Parties  may  be  witnesses,  but  must  be 
corroborated.      Jury  may  be  demanded  by  either  party. 

INDIANA. 

Indiana  law  declares  marriage  to  be  a  civil  contract  into 
which  males  of  the  age  of  eighteen  and  females  of  the  age  of 
sixteen,  not  nearer  of  kin  than  second  cousins,  and  not  having 
a  husband  or  a  wife  living,  are  capable  of  entering.  If  a  man 
in  Indiana  leaves  land  or  other  property  to  his  widow  in  his 
will,  wath  a  condition  in  restraint  of  marriage,  the  gift  of  land 
or  property  will  stand,  but  the  condition  will  be  void.  If  a 
man  in  Indiana  shall  marry  the  mother  of  an  illegitimate 
child,  and  acknowledge  it  as  his  own,  such  child  becomes 
legitimate.  The  following  marriages  are  declared  void  :  (i) 
Where  either  party  had  a  husband  or  wife  living  at  the  time  of 
such  marriage  ;  (2)  where  one  party  is  white  and  the  other  is 
possessed  of  one  eighth  or  more  of  negro  blood  ;  (3)  where 
either  party  is  insane  or  idiotic  at  the  time  of  marriage.  All 
marriages  prohibited  by  law  on  account  of  consanguinity, 
affinity,  difference  of  color,  or  \vhen  either  party  thereto  has  a 
former  husband  or  wife  living,  are  declared  to  be  absolutely 
void,  without  any  legal  proceedings.  The  issue  of  a  marriage, 
void  on  account  of  consanguinity,  affinity,  or  difference  of 
color,  are  deemed  legitimate.  And  where  parties  to  a  marriage, 
void  because  a  former  marriage  exists  undissolved,  contracted 
the  void  marriage  in  the  reasonable  belief  that  such  disability 
did  not  exist,  the  issue  begotten  before  the  discovery  of  such 
disability  by  such  innocent  party  shall  be  deemed  legitimate. 
And  where  a  marriage  is  declared  void  by  reason  of  want  of 
age  or  understanding,  the  issue  of  such  marriage,  begotten 
before  the  same  is  annulled,  shall  be  legitimate. 

How  to  Marry. — Before  any  persons,  except  members  of 
the  Society  of  Friends,  shall  be  joined  in  marriage,  they  shall 
produce  a  license  from  the  clerk  of  the  Circuit  Court  of  the 
county    where    the   bride     resides,    directed    to    any   person 


224  THE   GEOGRAPHY  OF  MARRIAGE. 

empowered  by  law  to  solemnize  marriages,  authorizing  him  to 
join  the  persons  therein  named  as  husband  and  wife.  Persons 
so  empowered  are  ministers  of  the  gospel  and  priests  of  every 
church  in  Indiana,  judges  of  courts  of  record  and  justices  of 
the  peace  within  their  respective  counties,  the  Society  of 
Friends  and  German  Baptists,  according  to  the  rules  of  their 
societies ;  but  no  marriage,  legal  in  other  respects,  shall  be 
void  on  account  of  the  incapacity  of  the  person  solemnizing 
the  same.  And  no  marriage  shall  be  void  or  voidable  for 
want  of  license  or  other  formality  required  by  law,  if  either  of 
the  parties  thereto  believed  it  to  be  a  legal  marriage  at  the 
time.  A  certificate  of  the  marriage  must  be  filed  by  the  party 
solemnizing  it  in  the  office  of  the  county  clerk  within  three 
months,  and  it  must  be  recorded  with  the  license,  and  for 
failure  to  return  the  certificate  within  that  time  the  party  may 
be  fined  not  more  than  $100  nor  less  than  $5.  Any  person 
empowered  to  solemnize  marriage  who  does  so  contrary  to 
law,  may  be  fined  not  exceeding  $500.  And  whoever  under- 
takes to  join  others  in  marriage,  knowing  he  has  no  lawful 
right  to  do  so,  may  be  fined  not  more  than  $500  nor  less 
than  $50,  to  which  maybe  added  imprisonment  not  more  than 
three  months  nor  less  than  ten  days.  A  clerk  who  issues  a  mar- 
riage license  contrary  to  law  shall  forfeit  any  sum  which  the  jury 
in  their  discretion  shall  deem  right,  and  a  docket  fee  of  $20. 

Marriage  of  Children. — The  clerk  of  the  Circuit  Court 
shall  not  issue  a  license  without  the  consent  of  the  parent  or 
guardian,  if  there  be  any,  if  the  bride  be  within  the  age  of 
eighteen  or  the  groom  within  the  age  of  twenty-one.  But  if 
the  bride  has  resided  one  month  in  the  county  where  the 
license  is  sought,  and  there  is  no  parent  or  guardian  resident 
within  the  State  of  Indiana,  license  may  issue.  An  affidavit  of 
the  required  facts  by  some  disinterested  person  justifies  the 
clerk  in  issuing  the  license. 

Forbidden  Marriages :  Relatives  ;  Miscegenation. 
— Persons  declared  capable  of  entering  the  married  state  must 
not  be  nearer  of  kin  than  second  cousins.     Tlie  punishment 


MARRIAGE   IN  THE  UNITED   STATES.  22$ 

for  incest  is  imprisonment  in  State  prison  not  less  than  two 
nor  more  than  ten  years,  or  in  county  jail  not  less  than  six  nor 
more  than  twelve  months.  The  penalty  attaches  where  the 
intercourse  is  between  step-father  and  step-daughter,  step- 
mother and  step-son,  parents  and  children,  brothers  and 
sisters  of  the  age  of  sixteen  and  upwards,  Avhere  the  parties 
had  knowledge  of  the  relationship. 

No  person  having  one  eighth  part  or  more  of  negro  blood 
shall  be  permitted  to  marry  any  white  woman  of  Indiana,  nor 
shall  any  white  man  be  permitted  to  marry  any  negro  woman  or 
any  woman  having  one  eighth  part  or  more  of  negro  blood.  And 
for  doing  so  knowingly  maybe  punished  by  fine  not  more  than 
$T,ooo  nor  less  than  $ioo,  and  imprisoned  not  more  than  ten 
nor  less  than  one  year.  Whoever  knowingly  counsels  or  in 
any  manner  assists  in  such  marriage  shall  be  fined  not  more 
than  $i,ooo  nor  less  than  $ioo.     The  marriage  is  void. 

Bigamy. — Whoever  being  married  marries  again,  the  for- 
mer husband  or  wife  being  alive,  and  the  bonds  of  matrimony 
still  undissolved,  and  no  legal  presumption  of  death  having 
arisen,  is  guilty  of  bigamy,  and  on  conviction  shall  be  impris- 
oned in  State  prison  not  exceeding  five  nor  less  than  two  years, 
or  fined  not  exceeding  $i,ooo,  and  imprisoned  in  county  jail 
not  less  than  three  nor  more  than  six  months. 

The  legal  presumption  of  death  above  referred  to  arises 
where  a  husband  or  wife  remains  absent  in  parts  unknown  for 
the  space  of  five  years. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  impotence 
existing  at  time  of  marriage  ;  (3)  abandonment  for  two  years  ; 
(4)  cruel  and  inhuman  treatment ;  (5)  habitual  drunkenness  ; 
(6)  failure  of  husband  to  make  reasonable  provision  for  his 
family  for  two  years  ;  (7)  conviction  of  infamous  crime.  Two 
years'  residence  required,  to  be  proved  by  two  witnesses,  who 
are  freeholders  and  residents  of  Indiana.  Prosecuting  attorney 
must  defend  all  divorce  suits  in  case  of  default.  Where  divorce 
is  obtained  by  publication,  decree  must  forbid  petitioner  to 
marry  again  within  two  years. 


226  THE    GEOGRAPHY  OF  MARRIAGE. 

IOWA. 

All  minors  attain  their  majority  by  marriage.  So,  although 
the  bride  is  but  fourteen  and  the  groom  is  but  sixteen,  ^s  soon 
as  the  wedding  is  over  they  are  of  full  age  in  the  eye  of  the 
law,  as  if  they  had  attained  the  ages  of  twenty-one  and  eighteen 
respectively.  Children  born  out  of  wedlock  become  legitimate 
when  the  parents  marry. 

How  to  Marry. — Persons  may  marry  themselves  in  any 
manner  they  see  fit,  so  long  as  they  make  a  mutual  agreement 
to  take  each  other  to  be  husband  and  wife  and  live  together  as 
such.  But  though  the  marriage  will  be  perfectly  good,  the 
parties,  unless  they  are  members  of  a  particular  denomination 
having  a  particular  mode  of  marrying  which  has  been  followed, 
and  all  persons  aiding  in  such  marriage  will  be  guilty  of  a  mis- 
demeanor unless  they  procure  a  marriage  license  from  the 
clerk  of  the  Circuit  Court  of  the  county  where  the  wedding 
took  place,  and  may  be  put  in  jail  not  more  than  a  year,  or 
fined  not  exceeding  $500,  or  both  fined  and  imprisoned.  Per- 
sons authorized  to  solemnize  marriage  are  a  justice  of  the 
peace  or  mayor  of  the  city  or  incorporated  town  where  the 
wedding  is  celebrated  ;  a  judge  of  the  Supreme,  Circuit,  or  Dis- 
trict Court  of  Iowa  ;  an  ordained  or  licensed  officiating  minister 
of  the  gospel.  The  parties  must  obtain  a  marriage  license 
from  the  clerk  of  the  Circuit  Court  of  the  county  where  the 
marriage  is  to  be  solemnized.  No  license  shall  be  granted 
where  the  bride  and  groom  are  under  the  ages  of  fourteen  and 
sixteen  respectively  ;  nor  to  minors  without  the  consent  of 
parent  or  guardian  (see  Marriage  of  Children)  ;  nor  where 
the  parties  are  in  such  condition  that  they  could  not  make  any 
other  civil  contract  ;  and  unless  the  clerk  is  himself  acquainted 
with  the  facts,  he  must  take  the  testimony  of  disinterested 
witnesses.  He  must  enter  the  application  in  a  book  for  that 
purpose,  stating  that  he  is  acquainted  with  the  parties,  and 
knew  them  to  be  of  competent  age  and  condition,  or  that  the 
proof  of  such  facts  was  made  by  one  or  more  witnesses  stating 
their  age.     For  granting  a  license  contrary  to  law  he  is  guilty 


MARRIAGE  IN  THE  UNITED   STATES.  22/ 

of  a  misdemeanor  punishable  as  above  stated.  The  celebrant 
must  give  to  each  party,  on  request,  a  marriage  certificate.  He 
must  also  make  return  thereof  to  the  clerk  of  the  Circuit  Court 
within  ninety  days,  or  forfeit  $50.  The  clerk  shall  keep  a 
register,  containing  the  names  of  the  parties,  the  date  of  mar- 
riage, and  the  name  of  the  person  by  whom  it  was  solemnized. 
Fee  for  solemnizing  and  making  return,  $2. 

The  law  as  to  marriage  licenses,  however,  does  not  apply  to 
members  of  any  particular  denomination,  having  as  such  any 
peculiar  mq^e  of  marriage.  But  where  any  mode  is  thus  pur- 
sued which  dispenses  with  the  services  of  a  clergyman  or 
magistrate,  the  husband  must  make  the  return  to  the  clerk  of 
the  Circuit  Court  within  ninety  days,  and  is  liable  for  failure  to 
do  so  as  above  stated. 

Marriage  of  Children. — K  marriage  between  a  male  of 
sixteen  and  a  female  of  fourteen  is  valid,  but  if  either  has  not 
attained  such  age,  the  marriage  is  a  nullity  or  not,  at  the  option 
of  such  party  made  known  at  any  time  before  he  or  she  is  six 
months  older  than  the  age  above  fixed.  If  either  party  is  a 
minor,  however,  the  clerk  of  the  Circuit  Court  is  forbidden  to 
grant  a  marriage  license  without  the  written  consent  of  the 
parent  or  guardian,  which  consent  must  be  acknowledged  or 
proved,  and  filed  with  the  clerk.  Unless  the  clerk  is  ac- 
quainted with  the  age  of  the  parties,  he  must  take  the  testi- 
mony of  competent  and  disinterested  witnesses.  For  issuing 
a  license  contrary  to  law  he  is  guilty  of  a  misdemeanor. 

Forbidden  Marriages  :  Relatives. — If  a  man  marry  his 
father's  sister,  mother's  sister,  father's  widow,  wife's  mother, 
daughter,  wife's  daughter,  son's  widow,  sister,  son's  daughter, 
daughter's  daughter,  son's  son's  widow,  daughter's  son's  widow, 
brother's  daughter,  or  sister's  daughter  ;  or  if  a  woman  marry 
her  father's  brother,  mother's  brother,  mother's  husband,  hus- 
band's father,  son,  husband's  son,  daughter's  husband,  brother, 
son's  son,  daughter's  son,  son's  daughter's  husband,  daughter's 
daughter's  husband,  brother's  son,  or  sister's  son,  they  shall  be 
deemed  guilty  of  incest,  and  punished  by  imprisonment  not 
more  than  ten  years  nor  less  than  one  year. 


228  THE    GEOGRAPHY  OF  MARRIAGE. 

Bigamy. — If  any  person  who  has  a  former  husband  or  wife 
living  marry  another,  it  is  bigamy,  unless  the  accused  can 
show  that  his  or  her  husband  or  wife  has  continually  remained 
beyond  seas,  or  has  voluntarily  withdrawn  from  the  other  and 
remained  absent  for  the  space  of  three  years  together,  the 
accused  not  knowing  the  absent  one  to  be  living  within  that 
time,  or  that  the  accused  has  good  reason  to  believe  such  hus- 
band or  wife  to  be  dead,  or  that  the  accused  has  been  legally 
divorced.  The  punishment  for  bigamy  is  imprisonment  in  the 
penitentiary  not  more  than  five  years,  or  fine  net  exceeding 
$500  and  confinement  in  jail  not  more  than  one  year.  Any 
unmarried  person  who  knowingly  marries  the  husband  or  wife 
of  another  guilty  of  bigamy,  may  be  punished  by  imprison- 
ment in  penitentiary  not  more  than  three  years,  or  by  fine  not 
exceeding  $300  and  imprisonment  in  jail  not  exceeding  one 
year. 

A  bigamous  marriage  is  void,  but  if  the  parties  live  together 
after  the  death  of  the  former  husband  or  wife,  the  second 
marriage  Avill  be  valid. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  wilful  de- 
sertion without  reasonable  cause  for  two  years  ;  (3)  conviction 
of  felony  ;  (4)  habitual  drunkenness  contracted  after  marriage  ; 
(5)  inhuman  treatment  which  endangers  life.  One  year's  resi- 
dence required.  Petitioner  must  swear  that  residence  was  not 
for  purpose  of  divorce. 

KANSAS. 

Kansas  is  the  only  State  where  the  law  refers  to  marriage  as 
a  sacrament.  It  is  declared  that  marriage  shall  be  considered 
in  law  as  a  civil  contract,  to  which  the  assent  of  the  parties  is 
essential  ;  "  and  the  marriage  ceremony  may  be  regarded 
either  as  a  civil  ceremony  or  a  religious  sacrament ;  but  the 
marriage  relation  shall  be  entered  into,  maintained,  and  abro- 
gated only  by  law."  All  marriages  contracted  out  of  the  State, 
valid  by  laws  where  contracted,  shall  be  valid  in  Kansas. 
(Compare  with  law  as  to  criminal  marriages.) 


MARRIAGE  IN  THE  UNITED    STATES.  229 

How  to  Marry. — There  is  doubt  whether  persons  other 
than  Quakers  can  marry  themselves.  License  must  be  issued 
by  the  probate  judge,  who  must  require  the  applicant  to  take 
and  subscribe  an  oath  that  no  impediments  in  law  exist  ;  and 
he  may  also  in  his  discretion  examine  witnesses.  For  failure 
to  examine  applicant  he  may  become  liable  to  fine  not  exceed- 
ing $1,000.  Marrying  without  a  license  subjects  the  parties  to 
a  fine  not  exceeding  $1,000.  Form  of  the  license  is  prescribed 
by  the  statute.  The  ceremony  may  be  performed  by  a  judge, 
justice  of  the  peace,  or  licensed  preacher  of  the  gospel.  The 
celebrant  must  certify  the  marriage  upon  the  license,  and  re- 
turn it  to  the  probate  judge  within  thirty  days.  Solemnizing 
marriage  with  knowledge  that  any  legal  impediment  exists 
thereto,  or  that  either  of  the  parties  is  within  the  age  of  con- 
sent, renders  the  celebrant  liable  to  imprisonment  not  exceed- 
ing one  year,  or  to  fine  not  less  than  $500,  or  to  both  fine  and 
imprisonment.  Quakers  or  Friends  are  permitted  to  marry  in 
accordance  with  the  customs  of  their  sect  or  society. 

Marriage  of  Children. — The  age  of  legal  consent  is 
twelve  in  females  and  fifteen  in  males.  But  where  marriage  is 
contracted  by  persons  under  the  age  of  consent,  it  is  neverthe- 
less a  good  marriage  until  it  has  been  dissolved  or  annulled  by 
a  court,  and  children  born  prior  to  such  dissolution  are  legiti- 
mate. If  the  parties  live  together  after  the  age  of  consent  is 
reached,  the  court  must  refuse  to  dissolve  the  marriage  on  the 
ground  of  non-age.  Solemnizing  marriage  with  knowledge 
that  either  party  is  within  the  age  of  consent,  renders  celebrant 
liable  to  imprisonment  not  exceeding  one  year,  or  fine  not  less 
than  $500,  or  both. 

Forbidden  Marriages :  Relatives. — Marriage  between 
parents  and  children,  including  grand-parents  and  grand-chil- 
dren of  any  degree  ;  between  brothers  and  sisters,  of  the  half 
as  well  as  of  the  whole  blood  ;  between  uncles  and  nieces, 
aunts  and  nephews,  and  first  cousins,  including  illegitimate  as 
well  as  legitimate  relatives,  is  void,  and  renders  the  parties 
liable  to  imprisonment  not  exceeding  seven  years.     Whoever 


230  THE   GEOGRAPHY  OF  MARRIAGE. 

knowingly  licenses  or  solemnizes  such  a  marriage  becomes 
liable  to  be  fined  or  imprisoned  in  the  discretion  of  the  jury. 
Where  the  jury  render  a  verdict  of  guilty,  or  where  the  accused 
confesses  the  crime,  the  fine  shall  not  exceed  $1,000,  nor  be  less 
than  $100,  and  the  imprisonment  shall  not  be  less  than  three 
months,  nor  exceed  five  years. 

Bigamy. — Where  a  person  having  a  husband  or  wife 
living  shall  marry,  it  shall  constitute  bigamy,  unless  the  ac- 
cused can  show  that  the  first  marriage  is  no  longer  recognized 
in  law,  which  may  be  done  in  one  of  four  ways,  by  reason  of 
(i)  absence,  (2)  divorce,  (3)  non-age,  or  (4)  imprisonment 
for  life  of  one  of  the  parties.  The  absence  must  have  been 
for  five  successive  years,  the  accused  not  knowing  such 
absentee  to  be  living  during  that  time  ;  or  the  absentee  must 
have  been  continuously  without  the  United  States  or  Territories 
for  five  successive  years.  The  divorce  must  be  absolute,  and 
the  accused  not  prohibited  thereby  from  marrying  again,  or  it 
must  appear  that  the  time  of  such  disability  has  expired  ;  or 
it  must  appear  that  the  first  marriage  was  declared  void,  or 
adjudged  to  have  been  contracted  when  the  parties  were  too 
young  to  lawfully  consent  thereto.  Marriage  within  six 
months  after  divorce  granted  in  Kansas  is  also  bigamy.  The 
punishment  for  bigamy  is  imprisonment  not  exceeding  five 
years,  nor  less  than  six  months,  or  fine  not  less  than  $500,  or 
both.  If  both  penalties  are  inflicted,  the  fine  must  not  be  less 
than  $100,  and  the  imprisonment  not  less  than  six  months. 

A  single  person  marrying  one  who  thereby  commits  bigamy, 
may  be  punished  by  imprisonment  not  exceeding  five  years,  or 
in  the  county  jail  not  exceeding  six  months,  or  by  fine  not  ex- 
ceeding $500,  or  both. 

Marrying  out  of  the  State  under  circumstances  which  would 
constitute  bigamy  in  Kansas,  if  the  parties  come  to  Kansas 
and  live  together,  they  are  liable  to  indictment  as  if  they  had 
been  married  in  Kansas. 

Divorce. — Maybe  granted  for:  (i)  adultery;  (2)  where 
either  party  had  former  husband  or  wife  living  at  time  of 


MARRIAGE  IN  THE  UNITED    STATES.  23 1 

second  marriage  ;  (3)  abandonment  for  one  year  ;  (4)  im- 
potency  ;  (5)  pregnancy  of  wife  at  tim.e  of  marriage  by  person 
other  than  husband  ;  (6)  extreme  cruelty  ;  (7)  fraudulent  con- 
tract ;  (8)  habitual  drunkenness  ;  (9)  gross  neglect  of  duty  ;  ( i  o) 
commission  of  felony,  and  imprisonment  therefor  in  peniten- 
tiary. Bojia-fide  residence  for  one  year  required.  Neither 
party  shall  marry  for  six  months  after  decree  of  divorce. 
Such  marriage  constitutes  bigamy. 

KENTUCKY. 

Every  person  who  shall  falsely  and  fraudulently  represent 
or  personate  another,  and  in  such  assumed  character  shall 
marry  another,  shall  be  imprisoned  not  less  than  one  nor  more 
than  five  years.  UuIcSlS  a  marriage  is  solemnized  in  the  presence 
of  an  authorized  person  or  society,  it  is  void.  But  no  mar- 
riage solemnized  before  any  person  professing  to  have  such 
authority  shall  be  invalid  for  want  of  such  authority,  if  con- 
summated by  the  parties,  or  one  of  them,  in  good  faith.  A 
person  solemnizing  marriage  without  authority  or  without  a 
license  shall  be  imprisoned  not  less  than  one  nor  more  than 
twelve  months,  or  fined  not  more  than  $1,000,  or  both  ;  and 
for  solemnizing  marriage  under  pretense  of  authority  shall  be 
imprisoned  not  exceeding  three  years. 

No  minister  or  priest  shall  solemnize  marriage  until  he  has 
obtained  a  license  therefor  from  the  county  court  of  the 
county  where  he  resides,  on  satisfying  the  court  that  he  is  of 
good  moral  character,  in  regular  communion  with  his  society, 
and  giving  covenant  or  a  bond  to  the  Commonwealth  of  Ken- 
tucky, with  good  surety  not  to  violate  the  marriage  laws.  The 
parties  to  the  bond,  for  breach  of  it,  may  be  fined  not  exceed- 
ing $2,000.  Where  the  parties  are  not  personally  known  to 
the  county  clerk,  if  under  twenty-one,  they  must  give  bond 
with  good  surety  for  $100,  conditioned  that  there  is  no  lawful 
cause  to  obstruct  the  marriage. 

Marriage  is  prohibited  and  declared  void  :  (i)  with  an  idiot 
or  lunatic  ;  (2)  between  a  white  person  and  a  negro  or  mulatto  ; 


232  THE    GEOGRAPHY  OF  MARRIAGE. 

(3)  where  there  is  a  husband  or  wife  living  from  whom  the 
person  marrying  has  not  been  divorced  ;  (4)  when  not  sol- 
emnized or  contracted  in  presence  of  an  authorized  person  or 
society  ;  (5)  when  the  male  is  under  fourteen  or  the  female 
under  twelve. 

If  residents  of  Kentucky  marry  elsewhere  the  marriage  is 
valid  in  Kentucky  if  valid  where  solemnized. 

How  to  Marry. — No  marriage  shall  be  solemnized  without 
a  license,  issued  by  the  clerk  of  the  county  where  the  bride 
resides.  If  she  is  of  full  age  or  a  widow,  and  applies  person- 
ally or  in  writing,  the  license  may  be  issued  by  the  county 
clerk.  Unless  the  clerk  is  personally  acquainted  with  the 
applicants,  if  under  twenty-one,  he  must,  before  issuing  the 
license,  take  a  bond  from  them  as  above  stated.  For  issuing 
a  license  knowingly  for  any  prohibited  marriage,  the  fine  is 
not  less  than  $100  nor  more  than  $500  and  expulsion  from 
office.  For  issuing  it  without  performing  the  duties  required, 
the  fine  shall  not  exceed  $1,000.  If  issued  by  a  deputy  the 
same  fine  may  be  imposed,  and  in  case  of  prohibited  marriages 
he  may  also  be  imprisoned  not  more  than  a  year,  or  both  fined 
and  imprisoned.  In  the  absence  of  the  clerk,  or  during  a 
vacancy,  the  judge  of  the  county  court  shall  perform  his 
duties. 

Marriage  shall  be  solemnized  only  by  the  following  persons  : 
ministers  or  priests  of  any  denomination,  licensed  and  giving 
bond  as  above  stated  ;  judges  of  the  county  court,  and  such 
justices  of  the  peace  as  the  county  judge  may  authorize.  But 
where  either  party  belongs  to  a  religious  society,  having  no 
officiating  priest  or  minister,  whose  usage  is  to  solemnize  mar- 
riage at  the  usual  place  of  worship,  and  by  consent  given  in 
the  presence  of  the  society,  it  may  be  so  solemnized. 

The  license  must  be  returned  by  the  minister  or  clerk  of  the 
society  to  the  clerk  of  the  county  court  whence  it  issued 
within  three  months,  with  a  certificate  of  the  marriage  over 
his  signature,  giving  date,  place  of  celebration,  names  of  some 
two  or  more  persons  present,  of  whom  there  shall  never  be  less 


MARRIAGE  IN  THE  UNITED   STATES.  233 

than  two  ;  for  failure  to  do  so  the  fine  is  $50.  The  same 
must  be  filed,  registered,  and  indexed  by  the  clerk.  Such 
minister  or  clerk  must  also  keep  all  details  in  a  marriage  regis- 
ter containing  names,  ages,  residences,  place  of  birth  of  per- 
sons married,  and  whether  single  or  widowed,  and  deposit  the 
register  or  a  copy  thereof  with  the  county  clerk  on  or  before 
January  loth  in  each  year.  For  failure  to  do  so  the  fine  is  not 
more  than  $20  nor  less  than  $5. 

Marriage  of  Children. — The  age  of  consent  is  fourteen 
in  males  and  twelve  in  females.  Where  the  bride,  when  mar- 
ried, was  under  fourteen  and  the  groom  under  sixteen,  and  the 
marriage  was  without  the  consent  of  father,  mother,  guardian, 
or  other  person  having  proper  charge  of  his  or  her  person, 
and  has  not  been  ratified  by  the  parties  living  together  after 
that  age,  the  court  has  power  to  declare  it  void,  at  the  suit  of 
any  next  friend. 

If  the  bride  is  under  sixteen  and  marries  without  consent 
of  father,  mother,  or  guardian,  her  estate  may  be  put  into  the 
hands  of  a  receiver,  at  the  suit  of  a  next  friend,  she  to  receive 
the  income  till  she  comes  of  age,  and  it  shall  then  be  deliv- 
ered to  her,  unless  the  court  considers  it  for  her  benefit  to 
continue  the  receiver. 

If  either  of  the  parties  was  under  twenty-one,  and  were 
never  before  married,  no  license  shall  issue  without  consent 
of  father  or  guardian,  or  if  there  be  none,  or  he  is  absent  from 
the  State,  without  the  mother's  consent,  given  personally,  or  in 
writing,  signed  by  two  witnesses,  and  proved  by  oath  of  one  of 
them  administered  by  the  clerk.  One  who  falsely  personates 
a  father,  mother,  or  guardian  may  be  imprisoned  not  exceed- 
ing three  years. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
A  man  shall  not  marry  his  mother,  grandmother,  sister, 
daughter,  or  granddaughter,  nor  the  widow  or  divorced  wife 
of  his  father,  grandfather,  son,  or  grandson  ;  nor  the  daughter, 
granddaughter,  mother,  or  grandmother  of  his  wife  ;  nor  the 
daughter  or  granddaughter  of  his  brother  or  sister  ;  nor  the 


234  THE   GEOGRAPHY  OF  MARRIAGE. 

sister  of  his  father  or  mother.  A  woman  shall  not  marry  per- 
sons related  to  her  in  like  manner.  If  the  relationship  is 
founded  on  marriage,  the  prohibition  shall  continue  notwith- 
standing its  dissolution  by  death  or  divorce,  unless  the  divorce 
is  for  a  cause  that  rendered  the  marriage  originally  illegal  and 
void.  The  prohibition  includes  illegitimate  children  and  rela- 
tives. Such  marriages  are  void,  and  punishable  by  fine  not 
less  than  $500  nor  more  than  $5,000.  Incest  as  between 
father,  mother,  child,  sister,  or  brother,  with  knowledge  of  the 
relationship,  is  felony,  punishable  by  imprisonment  not  less 
than  two  nor  more  than  six  years. 

Marriage  between  a  white  person  and  a  negro  or  mulatto  is 
prohibited  and  is  void,  and  punishable  by  fine  no1»  less  than 
$500  nor  more  than  $5,000. 

Bigamy. — Whoever  being  married  shall  marry  another,  is 
guilty  of  bigamy,  unless  the  accused  can  show  that  the  for- 
mer husband  or  wife  shall  have  been  absent,  and  continu- 
ally remained  beyond  seas,  or  in  any  State  of  the  United 
States,  not  having  been  heard  from  for  five  years,  the  accused 
not  knowing  such  person  to  be  living  ;  or  that  the  accused  has 
been  divorced  and  permitted  to  marry,  or  that  the  former 
marriage  has  been  held  void,  or  that  the  former  marriage  was 
had  or  made  within  the  age  of  consent.  The  punishment  is 
imprisonment  not  less  than  three  nor  more  than  nine  years. 
If  the  person  convicted  is  a  man,  the  first  wife  gets  a  third  of 
his  lands  for  life,  and  a  third  of  his  other  property  absolutely  ; 
and  if  a  woman,  she  loses  her  dower. 

Divorce. — May  be  granted  for  :  (i)  impotency  or  malfor- 
mation ;  (2)  living  apart  entirely  five  consecutive  years.  To 
an  innocent  party,  where  the  other  is  guilty  of  :  (i)  abandon- 
ment for  one  year  ;  (2)  living  in  adultery  ;  (3)  condemnation 
for  felony  :  (4)  concealment  of  loathsome  disease  existing  at 
time  of  marriage,  or  contracting  it  afterwards  ;  (5)  force, 
duress,  or  fraud  in  obtaining  the  marriage  ;  (6)  uniting  with 
religious  sect  whose  creed  requires  renunciation  of  marriage 
covenant  or  forbids  cohabitation.     To  wife,  when  husband  is 


MARRIAGE  IN  THE    UNITED   STATES.  235 

guilty  of:  {i)  drunkenness  for  one  year,  accompanied  by 
wasting  of  his  estate,  and  without  making  suitable  main- 
tenance ;  (2)  habitually  behaving  for  not  less  than  six  months, 
in  such  cruel  and  inhuman  manner  as  to  indicate  a  settled 
aversion  to  her,  or  to  destroy  permanently  her  peace  and  hap- 
piness ;  (3)  such  cruel  beating  or  injury  or  attempted  injury 
as  indicates  an  outrageous  temper,  or  probable  danger  to  life, 
or  great  bodily  injury.  To  husband,  when  wife  is  guilty  of  : 
(i)  Pregnancy  by  another,  without  husband's  knowledge  at 
time  of  marriage  ;  (2)  adultery,  or  such  lewd  or  lascivious  be- 
havior as  proves  her  unchaste.  No  jury  permitted.  One 
year's  residence  required.  The  county  attorney  must  resist 
every  suit  for  divorce.  In  case  of  success  his  fee  of  $20  must 
be  paid  by  the  husband.  After  divorce  either  party  may  mar- 
ry again. 

LOUISIANA. 

The  laws  of  Louisiana  are  founded  upon  the  civil  law  and 
'upon  the  Code  Napoleon.  Marriage  in  Louisiana  is  de- 
clared to  be  "  a  contract  intended  in  its  origin  to  endure  until 
the  death  of  one  of  the  contracting  parties  ;  yet  this  contract 
may  be  dissolved  before  the  decease  of  either  of  the  married 
persons,  for  causes  determined  by  law."  Since  the  law  consid- 
ers marriage  in  no  other  view  than  that  of  a  civil  contract,  it 
sanctions  all  those  marriages  where  the  parties,  at  the  time  of 
making  them,  were  :  (i)  willing  to  contract  ;  (2)  able  to  con- 
tract ;  (3)  who  did  contract  pursuant  to  the  forms  and  solem- 
nities prescribed  by  law.  Consent  is  not  free  :  (i)  when  given 
to  a  ravisher,  unless  given  by  the  party  ravished  after  she  has 
been  restored  to  the  enjoyment  of  liberty  ;  (2)  when  it  is  ex- 
torted by  violence  ;  (3)  when  there  is  a  mistake  respecting  the 
person  M-hom  one  of  the  parties  intended  to  marry.  Conjugal 
rights  and  duties  are  thus  defined  :  The  husband  and  wife 
owe  to  each  other  mutually,  fidelity,  support,  and  assistance. 
The  wife  is  bound  to  live  with  her  husband,  and  to  follow  him 
wherever  he  chooses  to  reside  ;  the  husband  is  obliged  to  re- 


236  THE   GEOGRAPHY  OF  MARRIAGE. 

ceive  her,  and  to  furnish  her  with  whatever  is  required  for  the 
convenience  of  life  in  proportion  to  his  means  and  condition. 
Children  born  out  of  wedlock  (except  those  who  are  born  from 
an  incestuous  or  adulterous  connection)  may  be  legitimated 
by  the  subsequent  marriage  of  their  father  and  mother,  when 
legally  acknowledged  before  marriage,  by  an  act  passed  before 
a  notary  and  two  Avitnesses,  or  by  their  contract  of  marriage 
itself.     They  are  then  known  as  natural  children. 

How  to  Marry. — A  license  must  first  be  procured,  which, 
since  1882,  in  the  parish  of  Orleans,  shall  be  granted  by  the 
Board  of  Health  and  judges  of  the  city  courts  in  said  parish, 
and  in  the  other  parishes  of  the  State  by  the  clerks  of  the 
courts,  unless  the  clerk  himself  should  be  a  party  to  the  mar- 
riage, when  the  license  shall  be  granted  by  the  district  judge. 
But  a  license  can  only  be  granted  in  the  parish  in  which  one 
at  least  of  the  parties  resides.  The  proposed  groom  must  first 
give  a  bond  in  a  sum  proportioned  to  his  means,  with  condi- 
tion that  there  exists  no  legal  impediment  to  the  marriage, 
The  duration  of  the  security  is  limited  to  two  years.  All 
licenses  must  be  in  duplicate.  The  marriage  must  be  cele- 
brated in  presence  of  three  witnesses  of  full  age,  and  an  act 
must  be  made  of  the  celebration,  signed  by  the  celebrant,  by 
the  bride  and  groom,  and  by  the  witnesses  ;  and  this  act  must 
be  in  duplicate  and  appended  to  the  duplicate  licenses,  one  of 
which  must  be  returned  within  thirty  days  by  the  celebrant  to 
the  person  who  granted  the  license,  who  shall  file  and  record 
the  same  in  his  office  ;  and  all  violations  of  the  foregoing  pro- 
visions shall  be  punished  by  a  fine  not  exceeding  |)i,ooo.  No 
marriage  can  be  celebrated  by  procuration. 

Marriage  may  be  celebrated  by  any  minister  of  the  gospel, 
or  priest  of  any  religious  sect,  wlvether  a  citizen  of  the  United 
States  or  not,  and  by  parish  judges  and  justices  of  the  peace 
in  their  respective  parishes,  upon  obtaining  a  special  license 
directed  to  such  minister,  priest,  or  magistrate,  issued  by  the 
person  authorized  to  grant  the  licenses,  authorizing  him  to 
celebrate  such  marriage,  and  not  otherwise.     Any  priest  or 


MARRIAGE  IN  THE  UNITED   STATES.  237 

minister  residing  in  Louisiana  may  now  celebrate  marriage  in 
any  parish  in  the  State.  Regularly  commissioned  notaries, 
also,  in  the  parish  of  West  Feliciana,  may,  during  their  term  of 
office,  celebrate  marriage  within  such  parish,  under  the  for- 
malities required  by  law. 

If  opposition  is  made  to  a  marriage  it  must  be  supported  by 
oath  of  the  party  objecting,  and  if  deemed  sufficient  to  author- 
ize a  suspension,  the  marriage  will  be  suspended,  and  a  day 
fixed,  not  exceeding  a  period  of  ten  days,  for  hearing  the  ob- 
jections, and  if  overruled  the  party  objecting  must  pay  the 
costs. 

Marriage  of  Children. — Persons  authorized  to  celebrate 
marriage  are  forbidden  to  marry  any  male  under  the  age  of 
fourteen,  or  female  under  the  age  of  twelve  years  ;  and  for 
doing  so  shall  be  removed  from  office,  if  a  magistrate,  or  if  a 
minister,  deprived  forever  of  the  right  of  celebrating  marriages. 
If  the  bride  and  groom  above  the  ages  above  specified,  have 
not  attained  the  age  of  majority,  they  must  have  received  the 
consent  of  the  father  and  mother,  or  of  the  survivor  of  them  ; 
and  if  both  are  dead,  the  consent  of  the  tutor,  and  must  fur- 
nish proof  of  this  consent  to  the  officer  to  whom  application  is 
made  for  permission  to  marry.  If  the  age  of  majority  has 
been  attained,  proof  of  this  fact  must  also  be  furnished  to  such 
officer. 

A  marriage  contracted  by  minors  without  such  consent  can- 
not for  that  cause  be  annulled,  if  it  was  otherwise  contracted 
with  the  formalities  prescribed  by  law,  but  shall  be  good  cause 
for  father  or  mother  to  disinherit  their  children  if  they  think 
proper. 

Forbidden  Marriages :  Relatives  ;  Miscegenation. 
— Marriage  between  persons  related  to  each  other  in  the  direct 
ascending  and  descending  line  is  prohibited,  whether  such 
relatives  are  legitimate  or  born  out  of  marriage.  Marriage 
among  collateral  relations  is  prohibited  between  brother  and 
sister,  whether  of  the  whole  or  half  blood,  whether  legitimate 
or  illegitimate,  and  also  between  the  uncle  and  the  niece,  the 


238  THE   GEOGRAPHY   OF  MARRIAGE. 

aunt  and  the  nephew.  Whoever  shall  commit  the  crime  of 
incest  shall,  on  conviction,  suffer  imprisonment  at  hard  labor 
for  life. 

The  courts  of  Louisiana  have  declared  that  marriage  between 
a  white  person  and  a  negro  or  mulatto  never  can  be  valid  in 
that  State. 

Bigamy. — Persons  legally  married  are,  until  a  dissolution 
of  the  marriage,  incapable  of  contracting  another,  under  the 
penalties  established  by  law,  which  is  by  fine  not  exceeding 
^500  and  imprisonment  not  exceeding  two  years,  unless  the 
accused  can  show  that  his  or  her  husband  or  wife  has  been 
absent  five  years,  the  one  not  knowing  the  other  to  be  living 
within  that  time  ;  or  that  the  accused  has  been  divorced  ;  or 
that  his  or  her  former  marriage  has  been  annulled  by  competent 
authority.  The  wife  shall  not  be  at  liberty  to  contract  another 
marriage  until  ten  months  after  the  dissolution  of  her  preceding 
marriage. 

Ten  years'  absence,  without  any  news  of  the  absentee,  is 
sufficient  cause  to  contract  another  marriage,  after  having  been 
authorized  to  do  so  by  the  judge,  on  due  proof  that  such  ab- 
sence, without  any  news,  had  continued  the  time  required  as 
aforesaid. 

If  the  absent  husband  or  wife  happens  to  return  after  such 
second  marriage,  the  second  marriage  will  not  thereby  be  in- 
validated, and  such  absentee  so  returning  is  free  to  marry  again. 

Divorce. — Absolute  divorce  in  the  first  instance  can  be  had 
only  for  :  (i)  adultery  ;  (2)  condemnation  to  an  infamous  pun- 
ishment. Judgment  of  separation  from  bed  and  board  may  be 
had  for  one  of  the  following  causes  ;  and  after  the  expiration 
of  one  year,  if  no  reconciliation  has  taken  place,  a  divorce  ab- 
solute maybe  granted  :  (i)  habitual  intemperance,  excesses, 
cruel  treatment,  or  outrages  of  such  character  as  to  render 
living  together  insupportable  ;  (2)  public  defamation  ;  (3) 
abandonment  ;  (4)  attempt  against  life  ;  (5)  fleeing  from 
justice  when  charged  with  infan^ous  offence,  and  proof  of 
guilt. 


MARRIAGE  IN  THE  UNITED   STATES.  239 

MAINE. 

Women,  under  the  laws  of  Maine,  may  be  appointed  by  the 
governor,  with  the  advice  and  consent  of  council,  to  solemnize 
marriage.  All  marriages  in  the  State  prior  to  1887  were 
required  to  be  returned  and  filed  with  the  Secretary  of  State  at 
Augusta  on  or  before  the  second  Monday  of  May  in  each 
year,  but  this  wholesome  law  was  repealed  in  March,  1887. 
Persons  must  declare  their  intentions  to  marry,  file  and  record 
the  same  with  the  town  clerk  of  the  town  where  each  lives  in  a 
book  known  as  "  Record  of  intentions  to  marry,"  at  least  five 
days  before  a  marriage  certificate  can  be  granted,  and  this 
book  must  be  at  all  times  open  to  inspection,  and  any  person, 
believing  parties  about  to  wed  have  no  lawful  right  to  do  so, 
may  file  with  the  same  clerk  a  caution,  and  the  reasons  for  it, 
and  then  no  certificate  shall  issue  until  two  justices  of  the 
peace  have  passed  on  the  question  after  due  notice  to  all 
parties.  Whoever  files  the  caution  must  bring  the  matter  to  a 
hearing  within  seven  days.  And  if  the  caution  is  not  for 
sufficient  reasons,  the  person  filing  it  must  pay  the  costs.  No 
insane  person  or  idiot,  or  person  having  a  husband  or  wife 
living,  is  capable  of  contracting  marriage,  and  such  marriages 
are  absolutely  void.  Sentence  to  imprisonment  for  life  and 
confinement  under  it  dissolves  marriage  without  legal  process. 

Whoever  contracts  a  marriage,  or  makes  false  representa- 
tions to  procure  a  marriage  certificate,  or  the  solemnization  of 
a  marriage  contrary  to  law,  forfeits  $100. 

Residents  of  Maine,  who  go  out  of  the  State  to  evade  the 
law  as  to  marriage  and  divorce,  with  intent  to  return,  and 
who  marry  out  of  the  State  and  return,  the  marriage  is  void  in 
Maine.  And  where  residents  marry  out  of  the  State,  and 
return,  they  must,  within  seven  days  after,  file  a  certificate  or 
declaration  of  their  marriage  with  the  town  clerk  of  the  town 
where  each  lived,  or  forfeit  %\o. 

How  to  Marry. — Persons  intending  to  marry  must  first 
cause  their  intention  to  do  so  to  be  recorded  with  the  town 


240  THE   GEOGRAPHY  OF  MARRIAGE. 

clerk  in  the  town  in  which  each  resides,  and  after  the  lapse  of 
five  days,  if  no  caution  has  been  filed  with  the  clerk  as  above 
stated,  the  clerk  shall  deliver  a  certificate  specifying  when  such 
intentions  were  entered  with  him,  and  it  must  be  delivered  to 
the  minister  or  magistrate  before  he  begins  to  solemnize 
the  marriage.  For  issuing  a  false  certificate  of  entry  of  inten- 
tion to  marry,  knowingly,  the  clerk  shall  be  fined  $ioo 
or  imprisoned  six  months.  No  certificate  of  marriage  shall 
be  issued  to  a  male  under  twenty-one  or  to  a  female 
under  eighteen,  without  written  consent  of  parents  or  guardi- 
ans if  there  are  any,  nor  to  a  town  pauper.  For  issuing  a 
certificate  contrary  to  law  or  falsely  stating  residence  of 
either  party,  the  clerk  forfeits  $20.  Marriage  may  be  sol- 
emnized by  a  justice  of  the  peace,  or  by  an  ordained 
minister  or  licensed  preacher,  or  by  any  woman  duly  appointed 
and  commissioned  by  the  governor  of  Maine  for  that  purpose, 
within  the  limits  of  his  or  her  appointment.  Whoever  so 
commissioned  wilfully  joins  persons  in  marriage  contrary  to 
law,  forfeits  $100,  and  the  offender  is  forbidden  to  solemnize 
marriage  thereafter.  And  if  any  person  thus  forbidden,  or  any 
minister  or  person  not  authorized  joins  any  persons  in 
marriage,  he  shall  be  imprisoned  at  hard  labor  not  more  than 
five  years,  or  fined  not  exceeding  $1,000.  Persons  solemnizing 
marriage  must  keep  a  record  thereof,  and  make  returns  to  the 
town  clerk  where  the  wedding  was,  and  to  the  clerk  of  the 
town  where  the  intention  was  filed,  on  or  before  the  15th  of 
every  month,  for  the  preceding  month,  and  must  certify 
names,  residences,  and  place  of  marriage,  and  for  neglect  to  do 
so  forfeits  a  sum  not  exceeding  $50. 

No  marriage  shall  be  void  by  reason  of  any  omission  or  in- 
formality in  entering  the  intention  of  marriage,  or  because 
solemnized  before  any  known  inhabitant  of  the  State  profess- 
ing to  be  a  justice  of  the  peace  or  ordained  minister,  if 
the  marriage  is  in  other  respects  lawful  and  was  entered  into  in 
good  faith. 

Quaker  marriages  are  valid,  but  the  clerk  or  keeper  of  the 


MARRIAGE  IN  THE  UNITED   STATES.  24I 

records  of  the  meeting  where  solemnized  must  deliver  a  list  of 
all  marriages  once  every  year  to  the  town  clerk,  or  forfeit  $50. 

Marriage  of  Children, — The  law  of  Maine  seems  to  be 
silent  as  to  age  of  consent  in  children  or  minors,  but  provides 
that  the  town  clerk  shall  not  issue  a  marriage  certificate  to 
a  male  under  twenty-one  or  a  female  under  eighteen,  without 
the  written  consent  of  their  parents  or  guardians,  if  they  have 
any  living  in  the  State,  and  for  issuing  such  certificate  without 
such  consent,  he  forfeits  $20,  and  for  marrying  contrary  to  this 
provision  of  law,  the  persons  so  marrying  or  performing  the 
ceremony  each  must  forfeit  $100. 

Forbidden  Marriages :  Relatives. — No  man  shall 
marry  his  mother,  grandmother,  daughter,  granddaughter, 
step-mother,  grandfather's  wife,  son's  wife,  grandson's  wife, 
wife's  mother,  wife's  grandmother,  wife's  daughter,  wife's 
granddaughter,  sister,  brother's  daughter,  sister's  daughter, 
father's  sister,  or  mother's  sister  ;  and  no  woman  shall  marry 
her  corresponding  relatives.  Such  marriages  are  void,  and 
punishable  by  imprisonment  not  less  than  one  nor  more  than 
ten  years. 

Bigamy. — If  any  person  except  one  who  has  been  legally 
and  finally  divorced,  or  one  whose  husband  or  wife  has  been 
continually  absent  for  seven  years,  not  known  to  the  accused 
to  be  living  within  that  time,  having  a  husband  or  wife  living, 
marries  another  married  or  single  person  ;  or  if  any  unmar- 
ried person  knowingly  marries  the  husband  or  wife  of  another 
such  person,  shall  be  deemed  guilty  of  polygamy,  and  punished 
by  imprisonment  for  not  more  than  five  years  or  by  fine  not 
exceeding  $500. 

Divorce. — All  decrees  of  divorce  are  in  the  first  instance 
decrees  m'st,  to  become  absolute  after  six  months  on  applica- 
tion of  either  party,  unless  court  otherwise  orders.  Parties 
may  testify.  Either  may  have  a  jury.  Divorce  may  be 
decreed  for  :  (i)  adultery  ;  (2)  impotence  ;  (3)  extreme 
cruelty  ;  (4)  utter  desertion  for  three  years  ;  (5)  gross  and 
confirmed   habits   of   intoxication  ;    (6)    cruel    and    inhuman 


242  THE   GEOGRAPHY  OF  MARRIAGE. 

treatment.  In  favor  of  wife  also,  where  husband  being  of 
sufficient  ability,  grossly  or  wantonly  or  cruelly  refuses  or 
neglects  to  provide  suitable  maintenance  for  her.  It  must 
appear  that  parties  were  married  in  Maine,  or  cohabited  there 
after  marriage,  or  that  the  plaintiff  resided  in  Maine  when 
cause  for  divorce  arose,  or  had  lived  there  in  good  faith  one 
year.  Residents  of  Maine,  who  go  out  of  it  to  procure 
divorce  for  causes  arising  while  parties  lived  in  Maine,  or  for 
any  cause  not  authorized  by  the  laws  of  Maine,  the  divorce  is 
void  in  Maine.  In  all  other  cases  if  the  court  granting  the 
divorce  had  jurisdiction  of  both  parties,  it  will  be  valid  in 
Maine,  if  legally  granted. 

MARYLAND. 

Maryland  revised  its  laws  relating  to  marriage  in  1886. 
In  case  of  Quaker  marriages,  the  certificate  must  be  signed  by 
the  bride  and  groom  and  at  least  twelve  witnesses.  Residents 
of  Maryland,  who  go  out  of  the  State  and  marry  a  resident  of 
Maryland  without  a  license,  or  publication  of  the  banns,  shall 
on  conviction  be  fined  $100.  The  penalty  for  marrying  cer- 
tain relatives  is  fine  or  banishment  from  the  State. 

How  to  Marry. — It  seems  by  the  old  law  in  force,  prior  to 
July,  1886,  marriage  could  be  celebrated  in  Maryland  only  by 
an  ordained  minister  of  the  gospel,  or  in  the  manner  practised 
by  Quakers.  This  law  seems  to  be  still  in  force.  No  person 
can  now  be  joined  in  marriage,  except  where  the  banns  have 
been  thrice  published,  or  where  the  parties  are  Quakers,  with- 
out a  license  issued  by  the  clerk  of  the  Circuit  Court  of 
the  county  where  the  wedding  is  celebrated.  But  in  the  city 
of  Baltimore  the  license  must  be  issued  by  the  clerk  of  the 
Court  of  Common  Pleas.  The  form  of  the  license  is  pre- 
scribed by  the  statute. 

It  must  have  appended  two  certificates  to  correspond,  as 
follows  : 

I  hereby  certify,  that  on  this  tenth  day  of  June,  one  thou- 
sand eight  hundred  and  ,  at  Bay  View,  Cecil 
County,  Walter  May,                      and  Jennie  June, 


MARRIAGE  IN  THE  UNITED   STATES.  243 

were  by  me  united  in  marriage,  in  accordance  with  the  license 
issued  by  the  Clerk  of  the  Circuit  Court  of  Cecil  County  [or 
City],  Maryland,  Rev.  Philo  Sheppard, 

Rector  of  St.  John's  Episcopal  Church, 
Bay  View,  Maryland. 

One  of  these  certificates  shall  be  handed  to  the  bride  and 
groom,  and  the  other  returned  to  the  clerk  of  the  court  who 
issued  it  within  thirty  days.  The  license  is  full  authority  for 
proceeding  with  the  marriage,  and  should  the  minister  or  other 
person  proceed  without  it,  he  may  be  fined  not  less  than  $100 
nor  more  than  $500.  The  bride  and  groom  marrying  without 
a  license,  or  publication  of  the  banns,  shall  on  conviction  be 
fined  $500. 

The  clerk  must  ascertain,  on  oath  of  the  applicant,  the  full 
names  of  bride  and  groom,  their  residence,  ages,  color,  whether 
married  or  single,  whether  related  and  in  what  degree,  set  out 
in  a  printed  form  to  be  signed  by  the  applicant.  The  clerk 
must  keep  a  "  Marriage  License  Book  "  containing  all  these 
facts,  also  when  the  certificate  of  marriage  was  returned,  and 
name  of  the  minister  or  other  person  or  persons  by  whom  the 
ceremony  was  performed.  If  any  legal  impediment  appears  to 
exist,  the  clerk  shall  withhold  the  license  until  the  court  of 
which  he  is  clerk  orders  him  to  issue  it.     Clerk's  fee,  %\. 

The  couple  may  marry  without  a  license  in  case  the  names 
of  the  bride  and  groom  shall  be  thrice  published  in  some 
church  or  house  of  worship  in  the  county  where  the  bride 
lives  three  several  Sundays,  by  some  minister  residing  in  the 
county. 

In  case  of  Quakers,  the  bride  and  groom  must  sign  a  certifi- 
cate, with  at  least  twelve  witnesses,  which  must  be  recorded 
among  the  records  of  the  Society  within  sixty  days,  or  in  some 
court  of  record  in  the  county. 

Persons  not  authorized  by  law,  who  shall  solemnize  mar- 
riage, shall  on  conviction  be  fined  $500. 

Marriage  of  Children. — No  marriage  license  shall  be 
issued  unless  the  bride  is  over  sixteen,  and  the  groom  over 


244 


THE   GEOGRAPHY  OF  MARRIAGE. 


twenty-one,  unless  the  parents  or  guardian  assent  thereto  in 
person,  or  by  writing,  signed  by  two  witnesses,  and  the  fact  of 
the  assent  must  be  made  part  of  the  record.  Any  minister 
marrying  persons  under  such  ages,  and  not  before  married, 
without  such  consent,  shall  be  fined  on  conviction  $1,500. 

Forbidden  Marriages  :  Relatives ;  Miscegenation. 
— If  any  person  in  Maryland  shall  marry  within  any  of  the 
degrees  of  kindred  or  affinity  expressed  in  the  following  table, 
the  marriage  shall  be  void. 


A  Man  Shall  Not  Marry 

A  Woman  Shall  Not  Marry 

His  grandmother. 

Her  grandfather. 

His  grandfather's  wife. 

Her  grandmother's  husband. 

His  wife's  grandmother. 

Her  husband's  grandfather. 

His  father's  sister. 

Her  father's  brother. 

His  mother's  sister. 

Her  mother's  brother. 

His  mother. 

Her  father. 

His  step-mother. 

Her  step-father. 

His  wife's  mother. 

Her  husband's  father. 

His  daughter. 

Her  son. 

His  wife's  daughter. 

Her  husband's  son. 

His  son's  wife. 

Her  daughter's  husband. 

His  sister. 

Her  brother. 

His  son's  daughter. 

Her  son's  son. 

His  daughter's  daughter. 

Her  daughter's  son. 

His  son's  son's  wife. 

Her  son's  daughter's  husband. 

His  daughter's  son's  wife. 

Her  daughter's  daughter's  husband. 

His  wife's  son's  daughter. 

Her  husband's  son's  son. 

His  wife's  daughter's  daughter 

Her  husband's  daughter's  son. 

His  brother's  daughter. 

Her  brother's  son. 

His  sister's  daughter. 

Her  sister's  son. 

If  any  person  shall  marry  with  any  person  within  the -three 
degrees  of  direct  lineal  consanguinity,  or  within  the  first 
degree  of  collateral  consanguinity,  they  shall  on  conviction  pay 
$1,500,  or  be  banished  the  State  forever.  If  they  marry 
within  any  other  degree  of  kindred  or  affinity  prohibited  by 
the  above  table,  they  shall  on  conviction  pay  $500.  A  minis- 
ter who  marries  parties  thereby  prohibited,  shall  on  conviction 
pay  a  fine  of  $500. 

All  marriages   between    a   white  person    and   a   negro,   or 


MARRIAGE  IN  THE  UNITED   STATES.  245 

between  a  white  person  and  a  person  of  negro  descent  to  the 
third  generation  inclusive,  are  forever  prohibited  and  void, 
and  persons  so  marrying  are  deemed  guilty  of  an  infamous 
crime,  and  on  conviction  shall  be  imprisoned  not  less  than 
eighteen  months  nor  more  than  ten  years,  and  the  minister 
marrying  them  shall  be  fined  $too. 

Bigamy. — Whoever,  being  married,  shall  marry  anothei,  is 
guilty  of  bigamy,  unless  the  accused  can  show  that  his  or  her 
husband  and  wife  has  been  seven  years  beyond  seas,  or  has 
been  continually  absent  seven  years,  the  accused  not  knowing 
such  person  to  be  alive.  On  conviction  the  penalty  is  im- 
prisonment for  not  less  than  eighteen  months  nor  more  than  nine 
years.  If  the  offender  is  the  husband,  the  first  wife  gets  her 
dower  and  one  third  of  the  personal  property,  and  he  forfeits 
all  rights  in  the  property  of  the  first  wife.  If  a  woman,  she 
forfeits  all  rights  in  her  first  husband's  property. 

Divorce.— Absolute  divorce  may  be  decreed  for:  (i)  Im- 
potency  at  time  of  marriage  ;  (2)  adultery  ;  (3)  any  cause  for 
which  a  marriage  is  void  by  laws  of  Maryland  (as,  for  example, 
where  there  was  no  religious  celebration  ;  or  of  persons  within 
prohibited  degrees)  ;  (4)  abandonment  for  at  least  three  con- 
secutive years,  proven  to  be  deliberate  and  final,  and  beyond 
reasonable  expectation  of  reconciliation  ;  (5)  when  woman  was 
guilty  of  illicit  intercourse  before  marriage,  without  knowledge 
of  husband  at  time  of  marriage.  Court  may,  in  its  discretion, 
forbid  guilty  party  to  marry  during  life  of  innocent  party. 
Violation  of  decree  is  bigamy. 

Limited  divorce  from  bed  and  board  may  be  had  for  :  (i) 
cruelty;  (2)  exceedingly  vicious  conduct;  (3)  abandonment 
and  desertion.  Limited  divorce  may  be  perpetual,  or  for 
specified  time,  and  may  be  revoked, 

MASSACHUSETTS. 

Marriages  in  Massachusetts  must  be  solemnized  in  the  city 
or  town  where  the  person  solemnizing  it  resides,  or  where  the 
bride  and  groom  or  one  of  them  resides.     Parties  must  file  in- 


246  THE   GEOGRAPHY  OF  MARRIAGE. 

tentions  to  marry.  Marriages  solemnized  in  a  foreign  country 
by  a  consul  or  diplomatic  agent  of  the  United  States  are  de- 
clared valid  in  Massachusetts.  If  a  marriage  is  solemnized 
before  a  person  pretending  or  professing  to  be  a  justice  or 
minister,  or  in  the  Society  of  Friends,  such  bogus  representa- 
tion or  want  of  authority,  or  informality  in  entering  the  inten- 
tioiito  marry,  shall  not  render  it  void,  if  it  is  in  other  respects 
lawful,  and  the  bride  and  groom  or  one  of  them  acted  in  good 
faith. 

A  child  born  out  of  wedlock,  whose  parents  shall  subse- 
quently marry,  and  whose  father  acknowledges  such  child, 
shall  be   deemed  legitimate. 

Prohibited  marriages  between  relatives  or  in  case  of  bigamy 
or  where  either  party  is  insane  or  an  idiot,  are  void  without 
decree  or  legal  process. 

How  to  Marry. — Except  in  case  of  Quakers,  persons  in 
Massachusetts  cannot  marry  themselves,  but  they  must  be 
married  by  a  justice  of  the  peace  or  by  an  ordained  minister 
of  the  gospel,  residing  in  Massachusetts.  The  bride  and 
groom  must  first  enter  their  intention  to  marry  in  office  of  the 
clerk  or  registrar  of  the  city  or  town  in  which  they  propose  to 
wed  ;  and  if  there  is  no  such  clerk  or  registrar  in  the  place 
where  they  reside,  then  the  entry  shall  be  made  in  the  adjoin- 
ing city  or  town.  The  clerk  must  give  the  parties  a  certificate, 
specifying  the  time  when  the  notice  of  intention  was  entered, 
and  with  all  the  facts  required  by  law  to  be  ascertained,  ex- 
cept the  name  of  the  minister  or  magistrate  ;  and  this  certifi- 
cate must  be  given  to  the  minister  or  magistrate  before  he 
proceeds  with  the  ceremony.  The  clerk  may  require  an  ap- 
plicant for  such  certificate  to  produce  an  affidavit  sworn  to 
before  a  justice,  setting  forth  the  age  of  the  parties,  which  shall 
be  sufficient  proof  ;  and  whoever  wilfully  makes  a  false  state- 
ment as  to  age,  residence,  parent,  master,  or  guardian,  shall 
forfeit  not  exceeding  $200.  Every  justice,  minister,  or  clerk, 
or  keeper  of  records  of  marriages  among  Quakers,  shall  make 
a  record  of   each  marriage,  and  all  facts  recjuired  to  be  re- 


MARRIAGE  IN  THE  UNITED    STATES.  247 

corded,  and  shall,  between  the  first  and  tenth  of  each  month, 
return  a  copy  thereof  for  the  preceding  month  to  the  clerk  or 
registrar  of  the  town  where  the  parties  were  wed  ;  or  if  neither 
resided  there,  then  to  the  clerk  or  registrar  of  the  town  where 
the  bride  and  groom  severally  resided,  if  they  resided  in  dif- 
ferent places,  and  such  return  shall  be  recorded  by  the  clerk  ; 
and  for  failure  to  do  so,  the  minister,  justice,  or  clerk  rshall 
forfeit  not  less  than  $20,  nor  more  than  $100.  And  where 
residents  marry  out  of  the  State  and  return,  they  must,  within 
seven  days  thereafter,  file  a  declaration  of  their  marriage,  in- 
cluding all  facts  required  by  law,  with  the  clerk  or  registrar  of 
the  city  or  town  where  either  of  them  lived  at  the  time  ;  and 
for  neglect  to  do  so  shall  forfeit  $10. 

A  justice  or  minister  joining  persons  in  marriage,  knowing 
it  is  not  duly  authorized,  shall  forfeit  not  less  than  $50,  nor 
more  than  $100.  And  whoever  joins  persons  in  marriage, 
knowing  he  has  no  legal  right  to  do  so,  shall  be  imprisoned 
not  exceeding  six  months,  or  pay  a  fine  not  less  than  $50  nor 
more  than  $200. 

Marriage  of  Children. — If  a  clerk  or  registrar  issue  a 
certificate  to  a  male  under  twenty-one  or  a  female  under  eigh- 
teen, when  he  has  reasonable  ground  to  suppose  them  to  be 
under  such  ages,  except  on  the  application  and  consent  in 
writing  of  the  parent  or  guardian,  he  shall  forfeit  not  exceeding 
$100  ;  but  if  there  is  no  parent,  master,  or  guardian  in  Massa- 
chusetts competent  to  act,  a  certificate  may  be  issued  without 
application  or  consent.  No  minister  or  magistrate  shall  sol- 
emnize a  marriage  where  he  has  reasonable  cause  to  suppose 
the  groom  is  under  twenty-one  or  the  bride  is  under  eighteen, 
without  the  consent  of  the  parent  or  guardian  having  custody 
of  the  minor,  if  there  is  any  competent  to  act.  A  marriage 
where  bride  and  groom  were  under  the  age  of  consent  is  void, 
if  the  parties  separate,  and  do  not  live  together  after  such  age 
is  reached. 

Whoever  fraudulently  and  deceitfully  entices  a  girl  under 
sixteen  to  leave  her  home  and  marry  him,  clandestinely  with- 


248  THE    GEOGRAPHY  OF  MARRIAGE. 

out  the  consent  of  the  young  lady's  parent  or  guardian,  and 
whoever  aids  and  assists  such  clandestine  marriage,  shall  be 
punished  by  imprisonment  not  exceeding  one  year  or  by  fine 
not  exceeding  $1,000,  or  by  both  fine  and  imprisonment. 

Forbidden  Marriages :  Relatives. — No  man  shall  marry 
his  mother,  grandmother,  daughter,  granddaughter,  step- 
mother, sister,  grandfather's  wife,  son's  wife,  grandson's  wife, 
wife's  mother,  wife's  grandmother,  wife's  daughter,  wife's 
granddaughter,  brother's  daughter,  sister's  daughter,  father's 
sister,  or  mother's  sister.  No  woman  shall  marry  her  father, 
grandfather,  son,  grandson,  step-father,  brother,  grandmother's 
husband,  daughter's  husband,  granddaughter's  husband,  hus- 
band's father,  husband's  grandfather,  husband's  son,  hus- 
band's grandson,  brother's  son,  sister's  son,  father's  brother, 
or  mother's  brother.  Such  marriages  are  void  without  legal 
process  ;  and  where  the  relationship  exists  by  marriage  the 
prohibition  continues,  notwithstanding  the  dissolution,  death, 
or  divorce  of  the  marriage,  unless  the  divorce  was  for  the  rea- 
son that  the  marriage  was  originally  unlawful.  The  punish- 
ment for  such  marriages  is  imprisonment  in  the  penitentiary 
not  exceeding  twenty  years  or  in  jail  not  exceeding  three  years. 

Bigamy. — Whoever,  having  a  husband  or  wife  living,  shall 
marry  another,  is  guilty  of  polygamy,  unless  the  accused  can 
show  that  the  husband  or  wife  of  the  accused  continually  re- 
mained beyond  sea,  or  has  voluntarily  withdrawn  and  re- 
mained absent  seven  years  together,  the  accused  not  knowing 
such  absent  one  to  be  living  within  that  time  ;  or  that  the  ac- 
cused has  been  legally  divorced,  and  was  not  the  guilty  cause 
of  such  divorce  ;  or  that  more  than  two  years  have  elapsed 
since  the  entry  of  final  decree  of  divorce.  The  punishment 
for  polygamy  is  imprisonment  in  State  prison  not  exceeding 
five  years,  or  in  jail  not  exceeding  three  years,  or  by  fine  not 
exceeding  $500. 

Divorce. — All  decrees  of  divorce  are  in  the  first  instance 
decrees  nisi.,  and  may  become  absolute  after  the  expiration  of 
six  months  from  granting  of  the  decree  on  application  to  the 


MARRIAGE  IN  THE  UNITED   STATES.  249 

court  by  either  party.  Divorce  may  be  decreed  for  :  (i)  adul- 
tery ;  (2)  impotency  ;  (3)  extreme  cruelty  ;  (4)  utter  desertion 
for  three  consecutive  years  ;  (5)  gross  and  confirmed  habits  of 
intoxication  ;  (6)  cruel  and  abusive  treatment ;  (7)  gross  or 
wanton  and  cruel  refusal  or  neglect  of  husband  to  maintain 
wife,  if  of  sufficient  ability  to  do  so  ;  (8)  separating  without 
consent  from  the  other,  and  uniting  for  three  years  with  any 
religious  society  which  holds  the  relation  of  husband  and  wife 
to  be  unlawful,  and  refusing  to  cohabit  ;  (9)  sentence  to  prison 
for  five  years  or  more  at  labor  ;  (10)  absence  for  such  time  as 
to  raise  presumption  of  death.  The  innocent  party  may  marry 
at  once,  but  the  guilty  party  shall  not  marry  until  the  expira- 
tion of  two  years  after  entry  of  final  decree. 

The  complainant  must  have  been  an  inhabitant  of  Massa- 
chusetts for  three  years  before  filing  the  libel,  and  the  parties 
must  have  been  inhabitants  of  the  State  at  the  time  of  their 
marriage  ;  or  the  complainant  must  have  resided  five  years  in 
Massachusetts  immediately  prior  to  filing  the  libel  ;  or  the 
parties  must  have  lived  as  husband  and  wife  in  Massachu- 
setts ;  if  the  cause  of  divorce  occurred  elsewhere,  they  must 
have  lived  in  Massachusetts  prior  thereto  as  husband  and 
wife  ;  and  one  of  them  must  have  lived  there  when  the  cause 
of  divorce  occurred. 

A  divorce  obtained  by  an  inhabitant  of  Massachusetts  in 
another  State  or  country,  where  the  party  left  the  State  to 
procure  it,  if  the  cause  occurred  in  Massachusetts,  or  for  a 
cause  not  sufficient  to  secure  a  divorce  there,  is  void  in  that 
State. 

MICHIGAN. 

In  Michigan,  while  the  law  prohibits  the  doing  of  certain 
things  on  Sunday,  it  is  careful  to  declare  that  a  man  may  be- 
come engaged  or  may  celebrate  his  wedding  on  that  day. 
Where  either  husband  or  wife  is  sentenced  to  imprisonment 
for  life,  the  sentence  dissolves  the  marriage,  without  further 
proceedings  or  decree,  and  a  subsequent  pardon  will  not  re- 
store it. 


250  THE   GEOGRAPHY  OF  MARRIAGE. 

If  any  person  shall  take  any  woman  unlawfully,  and  against 
her  will,  by  force,  menace,  or  duress,  compel  her  to  marry 
him,  or  any  other  person,  or  to  be  defiled,  he  shall  be  punished 
by  imprisonment  for  life,  or  any  term  of  years.  If  a  person 
does  so  with  intent  to  accomplish  such  a  design,  the  imprison- 
ment shall  not  exceed  ten  years.  And  every  person  who  shall 
entice  a  girl  under  sixteen  from  her  parents  or  guardian, 
without  their  consent,  in  order  to  marry  her,  shall  be  im- 
prisoned in  penitentiary  not  exceeding  three  years,  or  in 
jail  not  exceeding  one  year,  or  fined  not  exceeding  $1,000. 

Children  born  out  of  wedlock  become  legitimate  by  the  sub- 
sequent marriage  of  their  parents,  or  if  they  do  not  marry,  the 
father  can  make  the  child  "legitimate  in  law,"  by  so  acknowl- 
edging in  writing,  executed  like  a  deed  of  land.  A  record  and 
index  of  all  marriages  in  the  State  must  be  kept  by  the  Secre- 
tary of  State  at  Lansing. 

How  to  Marry. — The  statute  is  silent  as  to  whether  per- 
sons can  marry  themselves,  but  there  have  been  decisions  by 
the  Michigan  courts  that  parties  may  marry  themselves  by 
present  contract  and  living  together.  Marriage  may  be 
solemnized  by  a  justice  of  the  peace  in  his  county ;  or 
throughout  the  State  by  an  ordained  minister,  acting  as  pastor, 
or  who  continues  to  preach  the  gospel  in  the  State.  All 
justices  and  ministers  before  solemnizing  marriage  are  re- 
quired to  examine  at  least  one  of  the  parties  on  oath,  which 
they  are  authorized  to  administer,  as  to  the  legality  of  the 
intended  marriage,  and  if  they  join  persons  in  marriage  con- 
trary to  law,  they  shall  forfeit  not  exceeding  $500.  And  if 
they  undertake  to  join  persons  in  marriage  knowing  they  have 
no  right  to  do  so,  or  knowing  of  any  impediment  to  the 
marriage,  they  shall  be  imprisoned  not  more  than  a  year,  or 
fined  not  less  than  $50  or  more  than  $500,  or  both  fined  and 
imprisoned.  But  no  marriage  celebrated  by  a  pretended  or 
supposed  minister  or  justice  shall  be  void,  where  the  bride  and 
groom,  or  one  of  them,  acted  in  good  faith. 

No  particular  form  is  necessary,  but  the  bride  and  groom 


MARRIAGE  IN  THE  UNITED   STATES.  251 

shall  solemnly  declare,  in  the  presence  of  the  minister  or 
magistrate  and  at  least  two  witnesses,  that  they  take  each  other 
as  husband  and  wife. 

Marriages  among  Quakers,  however,  or  any  other  particular 
denomination,  celebrated  according  to  the  customs  of  the  de- 
nomination, are  declared  valid. 

Every  justice,  minister,  or  clerk  of  religious  society,  by 
whom  or  at  which  a  wedding  is  celebrated,  must  make  a 
record  thereof,  containing  full  names  and  residences  of  all 
parties  and  of  at  least  two  witnesses  present,  and  maiden  name 
of  bride,  if  a  widow,  age,  color,  together  with  place  of  birth  of 
bride  and  groom,  official  station  of  person  performing  the 
ceremony,  and  deliver  a  certificate  thereof,  on  demand,  to 
either  party  ;  and  must  also  within  ninety  days  deliver  a 
certified  copy  of  such  certificate  to  the  county  clerk  of  the 
county  where  the  wedding  took  place,  and  pay  him  twenty-five 
cents  for  recording  same  ;  and  the  clerk  must  record  same  in  a 
book  for  that  purpose  fully  indexed,  and  make  return  to  the 
Secretary  of  State  of  all  marriages  in  September  of  each  year, 
for  the  year  ending  December  31st  preceding.  And  any  officer 
failing  to  do  so,  or  making  false  returns,  shall  be  guilty  of  a 
misdemeanor,  and  fined  not  exceeding  $100,  and  imprisoned 
till  same  is  paid,  or  not  exceeding  ninety  days. 

Marriage  of  Children. — If  the  groom  is  eighteen  and  the 
bride  sixteen,  they  are  competent  to  wed.  The  punishment 
for  enticing  a  girl  under  sixteen  away  from  her  parents 
or  guardians  without  their  consent,  in  order  to  marry 
her,  is  punishable  by  fine  and  imprisonment  as  above 
stated. 

Forbidden  Marriages :  Relatives.  —  No  man  shall 
marry  his  mother,  grandmother,  daughter,  granddaughter, 
step-mother,  grandfather's  wife,  son's  wife,  grandson's  wife, 
wife's  mother,  wife's  grandmother,  wife's  daughter,  wife's 
granddaughter,  nor  his  sister,  brother's  daughter,  sister's 
daughter,  father's  sister,  or  mother's  sister.  And  no  woman  shall 
marry  her  corresponding  relatives.     Such  marriages  are  void, 


252  THE    GEOGRAPHY  OF  MARRIAGE. 

and  punishable  by  imprisonment  in  State  prison  not  more 
than  fifteen  years,  or  in  jail  not  more  than  one  year. 

Marriages  between  white  persons,  and  those  wholly  or  in 
part  of  African  descent,  are  declared  valid. 

Bigamy. — If  any  person  having  a  former  husband  or  wife 
living  shall  marry  another,  they  shall  be  deemed  guilty  of 
polygamy,  unless  the  accused  can  show  that  his  or  her  husband 
or  wife  has  continually  remained  beyond  sea,  or  voluntarily 
remained  absent  five  years  together,  the  accused  not  knowing 
such  person  to  be  living  ;  or  that  the  accused  had  good  reason 
to  believe  such  husband  or  wife  to  be  dead,  or  that  the  accused 
has  been  lawfully  divorced.  The  penalty  is  imprisonment  in 
State  prison  not  exceeding  five  years,  or  in  jail  not  exceeding 
one  year,  or  a  fine  not  exceeding  $500. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  physical 
incapacity  at  time  of  marriage  ;  (3)  sentence  to  imprisonment 
for  three  years  or  more  ;  (4)  desertion  for  two  years  ;  (5)  where 
either  has  become  an  habitual  drunkard  ;  (6)  where  husband 
or  wife  of  a  resident  of  Michigan  has  obtained  a  divorce  out 
of  the  State.  Divorce  from  bed  and-  board  may  be  decreed 
for  :  (i)  extreme  cruelty,  whether  by  personal  violence  or  other 
means  ;  (2)  utter  desertion  for  two  years  ;  to  wife  also  where 
husband  being  of  sufficient  ability,  grossly  or  wantonly  and 
cruelly  refuses  or  neglects  to  support  her.  One  year's  residence 
is  required,  except  where  parties  were  married  in  Michigan, 
and  complainant  resided  there  till  filing  of  bill. 

MINNESOTA. 

According  to  the  law  of  Minnesota,  marriage  is  declared  to 
be  a  civil  contract,  to  which  the  consent  of  the  parties  capable 
in  law  of  contracting  is  essential.  Children  born  out  of 
wedlock  become  legitimate  by  the  subsequent  marriage  of 
their  parents.  If  a  marriage  shall  be  annulled  by  the  court, 
the  issue  of  the  marriage  are  nevertheless  legitimate. 

If  a  marriage  is  celebrated  before  any  person  pretending  or 
professing  to  be  authorized  to    perform  the  ceremony,  such 


MARRIAGE  IN  THE  UNITED   STATES.  253 

bogus  representation  shall  not  make  the  marriage  void,  so 
long  as  the  bride  and  groom,  or  one  of  them,  acted  in  good 
faith.  There  must  be  at  least  two  witnesses  to  every  marriage, 
besides  the  minister  or  officer. 

How  to  Marry. — Marriage  may  be  solemnized  by  any 
justice  of  the  peace  in  his  county,  or  by  any  judge  of  a  court 
of  record,  tfie  superintendent  of  the  department  of  the  deaf  and 
dumb  in  the  Minnesota  Deaf,  Dumb,  and  Blind  Institute,  or 
ordained  minister  of  the  gospel  anywhere  in  the  State.  But  a 
minister  before  he  can  perform  the  marriage  ceremony, 
shall  first  file  with  the  clerk  of  the  district  court  of  some 
county,  a  copy  of  his  credentials  of  ordination.  The  clerk 
must  record  the  credentials  and  give  a  certificate  thereof.  The 
minister  must  endorse  upon  every  certificate  of  marriage  given 
by  him,  the  place  where  his  credentials  are  recorded. 

A  license  must  be  procured,  only  in  case  the  bride  lives  or  is 
married  in  a  county  where  there  is  a  clerk  of  a  district  court. 
The  clerk  when  applied  to  may  inquire  on  oath  respecting  the 
legality  of  the  marriage,  and  if  satisfied  there  is  no  legal  impedi- 
ment thereto,  shall  grant  the  license  under  the  seal  of  the 
court,  and  make  a  record  of  it.  For  issuing  it  contrary  to  law 
he  shall  forfeit  not  exceeding  $1,000.  The  celebrant  may  also 
examine  at  least  one  of  the  parties  on  oath,  which  he  is 
authorized  to  administer,  as  to  the  legality  of  said  marriage,  and 
in  case  he  is  satisfied  there  is  any  legal  impediment  thereto, 
must  not  perform  the  ceremony.  No  particular  form  is  neces- 
sary, but  the  parties  shall  declare  in  the  presence  of  the  cele- 
brant and  attending  witness  that  they  take  each  other  as 
husband  and  wife.  In  every  case  there  must  be  at  least  two 
witnesses  present  besides  the  celebrant.  A  certificate  must  be 
given  if  requested,  specifying  names  of  bride  and  groom  and 
of  at  least  two  witnesses,  with  residences,  and  time  and  place 
of  marriage.  Celebrant  must  also  record  it,  and  within  one 
month  make  return  to  the  clerk  of  the  district  court  of  the 
county  where  the  marriage  took  place,  or  to  the  county  to 
which  it  is  attached    for  judicial  purposes,  which  certificate 


254  THE   GEOGRAPHY  OF  MARRIAGE. 

shall  be  filed  and  recorded  by  the  clerk  in  a  book  kept  for  that 
purpose.  For  failure  to  make  the  return  or  to  record  it,  cele- 
brant may  be  fined  not  exceeding  $ioo.  For  solemnizing 
marriage  contrary  to  law,  or  making  false  return  of  pretended 
marriage,  the  party  shall  forfeit  not  exceeding  $500,  or  may  be 
imprisoned  not  exceeding  one  year.  And  if  a  person  who  is 
not  authorized  knowingly  undertakes  to  join  others  in  mar- 
riage, he  may  be  imprisoned  not  more  than  one  year,  or  fined 
not  more  than  $500,  or  both  fined  and  imprisoned.  Quaker 
marriages  solemnized  according  to  their  customs  are  valid  ;  but 
the  clerk  of  the  meeting  at  which  it  was  solemnized  must, 
within  a  month,  make  a  return  to  the  clerk  of  the  court  as  in 
other  cases.  And  if  the  marriage  does  not  take  place  in 
meeting,  the  marriage  certificate  must  be  signed  by  the  parties 
and  at  least  six  witnesses,  and  filed  and  recorded  as  in  other 
cases  under  like  penalty. 

Marriage  of  Children. — A  male  of  eighteen  and  a  female 
of  fifteen  may  marry,  but  if  they  are  not  of  full  age,  and  are  not 
either  a  widow  or  widower,  the  clerk  shall  not  issue  a  license 
without  the  consent  given  personally  of  the  parents  or  guar- 
dian, or  in  writing  signed  by  two  witnesses,  one  of  whom  shall 
appear  before  the  clerk  and  make  oath  as  to  its  genuineness. 
The  clerk  is  authorized  to  administer  the  oath  to  such  witness, 
and  shall  issue  the  license  under  the  seal  of  the  court.  Clerk's 
fees  $2.  For  issuing  a  license  contrary  to  law  he  shall  forfeit 
not  exceeding  $1,000  to  aggrieved  parent  or  guardian.  If 
parties  married  under  the  age  of  legal  consent  live  together 
after  arriving  at  such  age,  the  marriage  will  not  be  annulled  by 
the  court. 

Forbidden  Marriages  :  Relatives. — No  marriage  in 
Minnesota  shall  be  contracted  by  persons  who  are  nearer  of  kin 
than  first  cousins,  computing  by  the  rules  of  the  civil  law, 
whether  of  the  half  or  whole  blood.  Such  marriages  are  void 
without  decree,  and  the  ])unishment  prescribed  is  imprison- 
ment not  more  than  two  years  nor  less  than  six  months. 

Bigamy. — If  any  person  having  a  former  husband  or  wife 


MARRIAGE  IN  THE  UNITED   STATES.  255 

living  marries  another,  the  accused  is  guilty  of  bigamy,  unless 
it  can  be  shown  that  the  husband  or  wife  of  the  accused  con- 
tinually remained  beyond  sea,  or  has  voluntarily  withdrawn 
and  remained  absent  seven  years  together,  the  accused  not 
knowing  such  absent  one  to  be  living  within  that  time  ;  or  that 
the  accused  has  been  legally  divorced,  and  was  not  the  guilty 
cause  of  the  divorce.  The  penalty  is  imprisonment  not  more 
than  four  nor  less  than  two  years,  or  fine  not  exceeding  $500 
nor  less  than  $300.  If  the  absentee  returns,  the  second  mar- 
riage is  void  only  from  the  time  it  is  so  declared  by  the  court. 
Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  impo- 
tency  ;  (3)  cruel  and  inhuman  treatment  ;  (4)  sentence  to 
imprisonment  in  State  prison  ;  (5)  wilful  desertion  for  three 
years  ;  (6)  habitual  drunkenness  for  one  year.  One  year's 
residence  required,  except  where  cause  is  adultery,  which  was 
committed  while  plaintiff  was  resident  of  Minnesota.  Divorce 
from  bed  and  board  may  be  granted  for  :  (i)  cruel  and  inhu- 
man treatment  ;  (2)  such  conduct  by  husband  as  renders  it 
unsafe  and  improper  for  wife  to  live  with  him  ;  (3)  abandon- 
ment of  wife  by  husband.  Parties  may  testify,  but  their 
evidence  must  be  corroborated. 

MISSISSIPPI. 

The  statutes  of  Mississippi,  on  the  subject  of  matrimony 
though  not  elaborate,  are  clear  and  concise,  save  on  the 
question  as  to  whether  parties  except  Quakers  can  legally 
marry  themselves.  The  groom  must  on  applying  for  a  license 
give  bond  to  the  State  in  the  penalty  of  $100.  Members  of 
the  board  of  supervisors  in  their  respective  counties  are 
among  those  authorized  to  celebrate  marriage. 

How  to  Marry. — Persons  authorized  to  solemnize  marriage 
between  persons  producing  a  license  are  any  ordained  minister 
of  the  gospel  in  good  standing,  any  chancellor,  or  judge  of 
the  Supreme  or  Circuit  Court,  or  any  justice  of  the  peace  or 
member  of  the  board  of  supervisors  within  their  respective 
counties.     A  pastor  of  any  religious  society  may  marry  mem- 


256  THE   GEOGRAPHY  OF  MARRIAGE 

bers,  according  to  its  established  rules  and  customs.  Quakers, 
Mennonites,  or  any  other  Christian  society  may  solemnize  their 
marriages  in  the  manner  agreeable  to  their  regulations.  If 
any  minister,  judge,  or  justice  shall  join  any  persons  in 
marriage  without  a  lawful  license,  or  shall  go  out  of  the  State  to 
do  it,  he  may  be  imprisoned  not  less  than  one  nor  more  than 
six  months. 

The  marriage  license  shall  be  granted  by  the  clerk  of  the 
Circuit  Court  of  the  county  in  which  the  bride  usually  resides, 
but  the  clerk  must  take  a  bond  to  the  State  with  sufificient 
surety  in  the  penal  sum  of  $100,  conditioned  that  there  is  no 
lawful  cause  to  obstruct  the  marriage.  A  certificate  of 
marriage,  signed  by  the  minister  or  magistrate  celebrating  the 
same,  or  by  the  clerk  of  the  religious  society  Avhere  performed, 
must  be  sent  to  the  clerk  of  the  Circuit  Court  of  the  county 
where  the  wedding  took  place,  within  six  months,  to  be 
recorded,  and  for  failure  to  do  so  the  party  forfeits  $50. 
Clerks  of  religious  societies  and  pastors  must  keep  true  and 
faithful  registers  of  all  marriages  solemnized,  and  send  a 
certificate  therefrom  to  such  Circuit  Court  clerk. 

Marriage  of  Children. — If  the  groom  is  under  twenty- 
one  or  the  bride  under  eighteen,  the  consent  of  the  parent  or 
guardian  of  such  person  shall  be  personally  given  to  the  clerk, 
or  due  proof  made  to  him,  by  oath,  of  at  least  one  credible 
witness,  which  oath  the  clerk  may  administer,  that  the  parent 
or  guardian  did  sign  the  consent  there  produced  ;  and  the 
clerk  must  record  the  consent  personally  given  or  the  certifi- 
cate so  proved,  and  issue  and  record  the  license,  which  must 
be  directed  to  any  minister,  judge,  or  justice,  lawfully  author- 
ized to  celebrate  the  rites  of  matrimony.  For  failure  to  comply 
with  these  provisions  the  clerk  is  guilty  of  a  misdemeanor.  If 
he  takes  an  affidavit  showing  the  i)arties  have  reached  the 
above  ages,  he  is  protected  in  issuing  a  license  without  such 
consents. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. 
— The  son  shall  not  marry  his    mother,  or   step-mother  ;  the 


MARRIAGE  IN  THE  UNITED   STATES.  257 

brother  his  sister  ;  the  father  his  daughter,  or  his  daughter's 
daughter  ;  the  son  shall  not  marry  the  daughter  of  his  father 
begotten  of  his  step-mother,  or  his  aunt  being  his  father's 
or  mother's  sister;  the  father  shall  not  marry  his  son's  widow. 
A  man  shall  not  marry  his  wife's  daughter,  or  his  wife's 
daughter's  daughter,  or  his  wife's  son's  daughter,  or  the 
daughter  of  his  brother,  or  his  sister  ;  and  the  like  prohibition 
shall  extend  to  females  in  the  same  degrees.  And  such 
marriages  are  void,  and  the  parties  shall  be  fined  $500,  or 
imprisoned  not  longer  than  ten  years,  or  both  fined  and  im- 
prisoned. 

The  marriage  of  a  white  person  and  a  negro,  or  mulatto, 
or  person  who  shall  have  one  fourth  or  more  of  negro  blood, 
shall  be  void,  and  subject  the  parties  to  the  same  punishment 
above  stated;  and  an  attempt  to  evade  the  law  by  marrying  out 
of  the  State  and  returning  shall  be  punishable  in  the  same 
manner. 

Bigamy. — Every  person  having  a  husband  or  wife  living, 
who  shall  marry  again,  and  every  unmarried  person  who  shall 
marry  the  husband  or  wife  of  another,  shall  be  guilty  of 
bigamy,  unless  the  accused  can  show  that  such  husband  or 
wife  has  been  absent  five  successive  years  without  being 
known  to  the  accused  to  be  living,  or  has  remained  without 
the  United  States  continually  for  five  successive  years,  or 
that  the  former  marriage  has  been  annulled  or  lawfully 
dissolved  for  any  cause  save  the  adultery  of  the  accused.  The 
punishment  is  imprisonment  in  the  penitentiary  not  longer 
than  ten  years. 

Divorce. — May  be  granted:  (i)  when  parties  are  within 
prohibited  degrees  of  relationship  ;  (2)  natural  impotency  ; 
(3)  adultery  ;  (4)  sentence  to  imprisonment  in  penitentiary,  if 
not  pardoned  prior  to  incarceration  ;  (5)  desertion  for  two 
years  ;  (6)  habitual  drunkenness  ;  (7)  mental  incapacity  at 
time  of  marriage  ;  (8)  habitual  cruel  and  inhuman  treatment, 
marked  by  personal  violence  ;  (9)  bigamy.  One  year's 
residence  required. 


258  THE   GEOGRAPHY  OF  MARRIAGE. 

MISSOURI. 

Missouri  statutes  declare  marriage  to  be  a  civil  contract  to 
which  the  consent  of  the  parties  capable  in  law  of  contracting 
is  essential.  Prior  to  1881  a  marriage  license  was  not  required, 
but  the  duty  of  ascertaining  whether  the  parties  had  a  legal 
right  to  marry  devolved  on  the  person  performing  the  cere- 
mony. Since  March,  1881,  a  license  is  required  in  every  case, 
and  persons  solemnizing  marriage  of  parties  who  failed  to 
obtain  it  are  guilty  of  a  misdemeanor,  and  are  subject  to  a  fine 
not  exceeding  $500,  and  in  addition  become  liable,  in  case 
of  minors,  to  a  civil  action  at  the  suit  of  the  parent,  guardian, 
or  other  person  to  whom  the  minors'  services  are  due,  in  dam- 
ages not  exceeding  $500. 

How  to  Marry. — Persons  may  marry  themselves  without 
the  performance  of  any  ceremony  ;  or  they  may  be  married  by 
any  judge,  judge  of  a  county  court,  and  justice  of  the  peace, 
or  by  any  licensed  or  ordained  preacher  of  the  gospel.  A 
marriage  license  shall  be  issued  by  the  recorder  of  the  county, 
or  of  the  city  of  St.  Louis  ;  the  form  is  prescribed  by  the 
statute. 

The  celebrant  shall,  within  ninety  days  after  the  issuing  the 
license,  make  upon  it,  as  near  as  may  be,  the  following  return, 
and  return  it  to  the  officer  issuing  it  : 

State  of  Missouri,  ) 
County  of  Shelby.  \ 

This  is  to  certify  that  the  undersigned,  a  justice  of  the  peace, 
did,  at  Shelby ville,  in  said  county,  on  the  loth  day  of  May, 
A.D.  18 — ,  unite  in  marriage  the  above-named  persons. 

Leonard  Linnett,  Justice  of  the  Peace. 

The  recorder  shall  record  all  marriage  licenses  in  a  book 
kept  for  that  purpose,  with  the  return  thereon,  for  which  his 
fee  is  $1,  to  be  paid  by  the  person  obtaining  the  same.  He 
must  make  a  return  to  the  grand  jury  of  all  licenses  issued 
and  not  returned  within  the  time  allowed  as  above.  Neglect 
or  refusal  to  issue  a  license  on  payment  of  the  fee  or  to  record 


MARRIAGE  IN  THE  UNITED   STATES.  2$g 

the  return  is  a  misdemeanor,  and  the  penalty  is  a  fine  not  less 
than  $ioo  nor  more  than  $500.  Failure  to  return  a  license 
within  ninety  days,  or  making  a  false  return,  is  a  misdemeanor, 
with  same  penalty. 

Every  religious  society  may  solemnize  the  rites  of  matri- 
mony according  to  the  custom  of  said  society  or  denomination. 
The  certificate  or  return  of  such  marriage  must  be  made  out 
by  the  clerk,  or  keeper  of  the  minutes  or  records  of  such 
society. 

Persons  solemnizing  marriage,  having  no  legal  right,  but 
falsely  representing  that  they  have  a  legal  right  to  do  so,  who 
shall  thereby  deceive  any  innocent  person,  by  a  pretended 
ceremony,  into  the  belief  that  they  are  legally  married,  shall 
be  imprisoned  not  exceeding  one  year,  or  fined  not  less  than 
^500,  or  be  both  fined  and  imprisoned. 

Marriage  of  Children. — The  age  of  consent  seems  to  be 
fifteen  in  males  and  twelve  in  females  (see  Bigamy),  but  no 
person  shall  join  in  marriage  or  issue  a  license  authorizing  the 
marriage  of  any  male  under  the  age  of  twenty-one,  or  any 
female  under  the  age  of  eighteen,  except  with  the  consent  of 
his  or  her  father,  or — if  he  is  dead,  incapable,  or  not  residing 
with  his  family — of  his  or  her  mother  or  guardian,  as  the  case 
may  be,  if  he  or  she  have  one  ;  which  consent,  if  not  given  at 
the  time  in  person,  must  be  by  a  certificate  in  writing,  sub- 
scribed and  witnessed.  In  every  license  the  recorder  shall 
state  whether  the  applicants,  or  either,  or  both  of  them  are  of 
age,  or  are  minors,  and  if  either  is  a  minor  the  name  of  the 
father,  mother,  or  guardian  consenting.  For  marrying  a  minor 
without  such  consent  the  celebrant  shall  forfeit  $300,  to  be 
recovered  in  a  civil  action,  and  shall  also  be  subject  to  indict- 
ment, and  imprisonment  not  exceeding  six  months  nor  less 
than  one  month. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
All  marriages  between  parents  and  children,  including  grand- 
parents and  grandchildren  of  every  degree,  between  brothers 
and  sisters  of  the  half  as  well  as  of  the  whole  blood,  and  be- 


26o  THE   GEOGRAPHY  OF  MARRIAGE. 

tween  uncles  and  nieces,  aunts  and  nephews,  are  prohibited 
and  declared  absolutely  void,  whether  the  children  or  relatives 
are  legitimate  or  illegitimate.  The  punishment  prescribed  for 
such  marriages  is  imprisonment  not  exceeding  seven  years. 

All  marriages  between  white  persons  and  negroes  are  pro- 
hibited and  declared  absolutely  void.  If  a  person  having  one 
eighth  part  or  more  of  negro  blood  shall  marry  a  white  person, 
or  if  a  white  person  marry  a  person  having  one  eighth  or  more 
negro  blood,  the  punishment  is  imprisonment  in  penitentiary 
for  two  years,  or  fine  not  less  than  $ioo,  or  imprisonment  in 
jail  not  less  than  three  months,  or  both  fine  and  imprisonment. 
The  jury  may  determine  the  proportion  of  negro  blood  by  the 
appearance  of  the  person. 

Persons  solemnizing  any  forbidden  marriage  are  guilty  of  a 
misdemeanor. 

Bigamy. — Every  person  having  a  husband  or  wife  living 
who  shall  marry  another,  whether  married  or  single,  is  guilty 
of  bigamy,  unless  the  accused  can  show  :  (i)  that  the  former 
husband  or  wife  has  been  seven  years  absent  without  being 
known  to  the  accused  to  be  living  ;  (2)  or  that  such  absent 
one  has  been  continually  remaining  without  the  United  States 
and  Territories  seven  years  together  ;  (3)  or  that  there  has 
been  a  divorce,  and  the  accused  is  not  thereby  forbidden  to 
marry  ;  (4)  or  that  the  first  marriage  has  been  adjudged  void 
by  the  court  ;  (5)  or  that  at  the  time  of  the  first  marriage  the 
bride  was  under  twelve  and  the  groom  under  fifteen  ;  (6)  or  that 
former  husband  or  wife  has  been  sentenced  to  imprison- 
ment in  the  penitentiary  for  life.  The  punishment  for  bigamy 
is  imprisonment  in  penitentiary  not  exceeding  five  years  or  in 
county  jail  not  less  than  six  months,  or  by  fine  not  less  than 
$100  and  imprisonment  in  jail  not  less  than  three  months.  An 
unmarried  person  who  marries  one  who  thereby  commits  big- 
amy is  liable  to  the  same  punishment.  Persons  outside  of 
Missouri  marrying  contrary  to  the  law  against  bigamy  and 
coming  into  the  State,  are  punishable  as  if  the  second  marriage 
had  taken  place  in  Missouri. 


MARRIAGE  IN  THE  UNITED   STATES.  26 1 

Divorce. — Maybe  granted  for:  (i)  impotence;  (2)  adul- 
tery ;  (3)  one  year's  absence  without  reasonable  cause  ;  (4) 
conviction  of  felony  or  infamous  crime  after  marriage  ;  (5) 
habitual  drunkenness  for  one  year  ;  (6)  cruel  or  barbarous 
treatment  endangering  life  ;  (7)  offering  indignities  rendering 
condition  intolerable  ;  (8)  conviction  of  felony  or  infamous 
crime  before  marriage  unknown  to  other  party  at  time  of  mar- 
riage ;  (9)  pregnancy  of  wife  at  time  of  marriage  without  hus- 
band's knowledge.     No  jury.     One  year's  residence  required. 

MONTANA. 

By  Act  of  Congress  approved  on  the  22d  of  February, 
1889,  Montana  was  admitted  into  the  Federal  Union.  The 
constitution  for  this  new  commonwealth  is  now  being  per- 
fected. The  law  of  the  Territory,  which,  it  is  fair  to  presume, 
will  be  the  law  of  the  State,  is  as  follows  : 

Montana  seems  to  be  the  only  place  in  the  United  States 
where  children  are  forbidden  to  enter  into  marriage  ;  but  the 
law  there  says  that  the  bride  and  groom  shall  be  of  the  age  of 
majority.  Every  person  who  shall  take  any  woman  unlawfully 
against  her  will,  and  by  force,  threats,  menace,  or  duress  com- 
pel her  to  marry  him,  or  to  marry  any  other  person,  or  to  be 
defiled,  shall  be  imprisoned  not  less  than  two  nor  more  than 
fourteen  years.  Every  person  who  shall  falsely  represent  or 
personate  another,  and  in  such  assumed  character  shall  marry 
another,  shall  be  imprisoned  not  less  than  one  nor  exceeding 
two  years,  or  fined  not  exceeding  five  thousand  dollars.  Mar- 
riage is  declared  a  civil  contract  to  which  the  assent  of  the 
parties  capable  in  law  of  contracting  is  essential,  and  the  par- 
ties shall  be  of  the  age  of  majority.  Children  born  out  of  wed- 
lock become  legitimate  by  the  subsequent  marriage  of  their 
parents. 

How  to  Marry. — The  marriage  may  be  solemnized  by  the 
governor  of  Montana,  by  any  judge  of  a  court  of  record,  by 
any  justice  of  the  peace  in  his  county  or  judicial  district,  or 
by  a  settled  minister  of  the  gospel.     Whoever  undertakes  to 


262  THE   GEOGRAPHY  OF  MARRIAGE. 

join  others  in  marriage,  knowing  he  has  no  legal  right  to  do 
so,  or  knowing  of  any  legal  impediment  to  the  proposed  mar- 
riage, is  liable  to  a  fine  not  exceeding  $500,  and  imprisonment 
until  it  is  paid.  But  no  marriage  shall  be  void  which  is  sol- 
emnized before  a  person  pretending  or  professing  to  be  a 
judge  or  minister,  if  the  bride  and  groom,  or  one  of  them, 
acted  in  good  faith.  Every  person  solemnizing  marriage  shall 
make  a  record  thereof,  and  deliver  to  either  or  both  parties,  if 
requested,  and  also  within  three  months  to  the  recorder  of 
deeds  of  the  county  where  the  wedding  took  place,  a  certifi- 
cate in  the  form  prescribed  by  the  statute. 

The  certificate  must  be  filed  and  recorded  by  the  recorder, 
in  a  book  kept  for  that  purpose.  His  recording  fee  is  one  dol- 
lar, which  must  be  paid  by  the  bride  and  groom  before  the 
marriage.  For  failing  to  do  so  the  person  so  failing  shall  for- 
feit not  less  than  $20  nor  more  than  $50.  [It  must  be  recorded 
also  pursuant  to  the  Act  of  Congress  in  the  Probate  Court. 
See  note  foot  of  page  194.]  And  for  wilfully  making  a  false 
certificate  the  penalty  is  a  fine  not  exceeding  $500,  and  im- 
prisonment until  it  is  paid. 

Marriage  of  Children. — Marriage  is  declared  to  be  a 
contract  to  which  the  parties  shall  be  of  the  age  of  majority. 
In  most  of  the  States  and  Territories  children  over  fourteen 
and  sixteen  are  allowed  to  marry,  with  consent  of  parents  or 
guardians,  and  are  capable  of  marrying  even  without  such 
consent.  The  language  of  the  law  in  Montana,  however, 
would  seem  to  imply  that  until  young  people  have  reached 
their  majority,  they  cannot  lawfully  marry. 

Forbidden  Marriages :  Relatives. — No  marriage  in 
Montana  shall  be  contracted  between  parties  who  are  nearer 
of  kin  than  second  cousins,  computing  by  the  rules  of  civil 
law,  whether  by  the  half  or  whole  blood.  The  punishment  is 
im])risonmcnt  not  less  than  one  nor  exceeding  ten  years. 

Bigamy. — Consists  in  having  two  wives  or  two  husbands 
at  the  same  time,  knowing  that  the  former  husband  or  wife  is 
still  alive.     The  crime  is  excused  if  the  accused  can  show  that 


MARRIAGE   IN  THE  UNITED   STATES.  263 

his  01"  her  husband  or  wife  has  been  continually  absent  for  five 
years  together,  the  accused  not  knowing  such  absent  one  to 
be  living  within  that  time  ;  or  that  the  accused  has  been  law- 
fully divorced  or  the  first  marriage  legally  rendered  void. 
The  punishment  is  fine  not  exceeding  $1,000,  and  imprison- 
ment not  less  than  one  nor  more  than  five  years.  And  if  any 
unmarried  person  knowingly  marries  the  husband  or  wife  of 
another  the  penalty  is  fine  not  less  than  $1,000,  or  imprison- 
ment not  less  than  one  nor  more  than  two  years. 

Divorce. — May  be  decreed  for  following  grounds  :  (i) 
Natural  impotency  at  time  of  marriage  ;  (2)  that  another  hus- 
band or  wife  is  living  ;  (3)  adultery  ;  (4)  desertion  for  one 
year  without  cause  ;  (5)  where  husband  has  wilfully  left  Mon- 
tana without  intending  to  return  ;  (6)  habitual  drunkenness 
for  one  year  ;  (7)  extreme  cruelty  ;  (8)  conviction  of  felony 
or  other  infamous  crime,  the  parties  not  having  lived  together 
thereafter.  One  year's  residence  required,  unless  offence 
was  committed  in  Montana  while  parties  resided  there. 

NEBRASKA. . 

Marriage  is  declared  to  be  a  civil  contract,  to  which  the 
consent  of  the  parties  capable  of  contracting  is  essential. 
Marriages  contracted  out  of  Nebraska,  valid  where  celebrated, 
shall  be  valid  in  Nebraska.  Children  born  out  of  wedlock  be- 
come legitimate  if  the  parents  afterwards  marry,  and  have 
been  adopted  in  the  family  with  other  children  born  in  wed- 
lock, or  shall  have  been  acknowledged  by  the  father  in  writing, 
signed  in  the  presence  of  one  witness. 

How  to  Marry. — Every  judge  and  justice  of  the  peace, 
preacher  of  the  gospel,  authorized  to  perform  marriage  by  the 
usage  of  his  church,  may  solemnize  marriage.  No  particular  form 
shall  be  required,  except  that  the  bride  and  groom  shall  declare 
in  the  presence  of  the  minister  or  magistrate,  and  at  least  two 
witnesses,  that  they  take  each  other  as  husband  and  wife.  A 
license  must  first  be  obtained  from  the  probate  judge  of  the 
county  where  the  wedding  takes  place.     The  judge  must  state 


264  THE   GEOGRAPHY  OF  MARRIAGE. 

therein  the  full  names  of  the  bride  and  groom,  and  of  the 
parents  of  both,  and  the  maiden  name  of  the  mothers  of  each, 
and  the  residence,  birthplace,  age,  and  color  of  the  couple  to 
be  married,  and  must  record  the  license  in  a  suitable  book  be- 
fore it  is  issued.  If  the  testimony  taken  by  the  judge  discloses 
that  either  bride  or  groom  is  incompetent,  or  that  there  is  any 
legal  impediment,  he  shall  refuse  the  license.  The  minister  or 
magistrate  shall  enter  on  the  license  a  full  return  of  the  pro- 
ceedings, and  return  it  to  the  probate  judge  within  three 
months,  and  the  return  shall  be  recorded  with  the  license. 
Upon  request,  he  shall  give  to  each  of  the  parties  a  certificate 
thereof.  For  failure  to  make  or  record  the  return,  or  for  join- 
ing persons  in  marriage  without  authority,  or  for  making  a 
false  return,  the  punishment  is  by  fine  not  exceeding  $500,  or 
imprisonment  not  exceeding  one  year. 

A  marriage  celebrated  by  one  professing  or  pretending  to  be 
a  minister  or  magistrate  shall  not  be  void  for  that  reason,  so 
long  as  the  bride  and  groom,  or  one  of  them,  acted  in  good 
faith. 

Every  religious  society  may  join  members  in  marriage  ac- 
cording to  the  customs  of  the  society,  but  the  clerk  or  keeper 
of  the  records  must  make  a  return  to  the  probate  judge,  and 
the  same  shall  be  recorded  as  in  other  cases. 

Marriage  of  Children. — The  bride  must  be  sixteen,  and 
the  groom  eighteen.  But  no  license  shall  be  granted  to  a 
minor,  without  the  verbal  or  written  consent  of  the  father,  if 
living,  or  if  not,  of  the  mother,  or  of  the  guardian  ;  and  the 
written  consent  must  be  proved  by  at  least  one  competent  wit- 
ness. If  the  parties  are  under  the  ages  above  stated,  and 
marry,  and  sei)arate  before  arriving  at  such  ages,  the  marriage 
is  nevertheless  valid,  unless  annulled  by  the  court. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
When  the  parties  are  related,  as  parents  and  children,  grand- 
parents and  grandchildren,  brothers  and  sisters  of  the  half  or 
of  the  whole  blood,  uncle  and  niece,  aunt  and  nephew,  whether 
the  relatives  are  legitimate  or  illegitimate,  the  marriage  is  void, 


MARRIAGE  IN  THE  UNITED   STATES.  265 

and  the  parties  shall  be  punished  by  imprisonment  not  exceed- 
ing ten  years.  And  where  either  party  is  insane,  or  an  idiot, 
the  marriage  is  absolutely  void. 

Where  one  party  is  white  and  the  other  is  possessed  of  one 
fourth  or  more  negro  blood,  the  marriage  is  absolutely  void. 

Bigamy. — Where  a  person  who  is  •  married  shall  marry 
anothar,  the  party  offending  is  guilty  of  bigamy,  unless  the 
accused  can  show  that  his  or  her  husband  or  wife  has  been 
continually  and  wilfully  absent  for  five  years  and  unheard 
from.  The  punishment  is  imprisonment  not  more  than  seven, 
nor  less  than  one  year.  If  the  first  marriage  shall  have  been 
dissolved  by  divorce,  it  will  be  bigamy  if  either  party  shall 
marry  while  an  appeal  is  pending  from  the  judgment  of 
divorce,  or  within  six  months  after  the  judgment,  the  time 
allowed  by  law  within  which  to  bring  such  appeal. 

Divorce. — May  be  decreed  for:  (i)  adultery;  (2)  wilful 
abandonment  without  just  cause  for  two  years  ;  (3)  where 
party  has  become  an  habitual  drunkard  ;  was  physically  in- 
competent at  time  of  marriage  ;  has  been  sentenced  to  im- 
prisonment for  three  years  or  more,  or  has  been  guilty  of 
extreme  cruelty.  Wife  may  also  have  a  divorce  where  husband, 
being  of  sufficient  ability,  grossly  or  wantonly  and  cruelly  re- 
fuses or  neglects  to  suitably  maintain  her.  Six  months'  resi- 
dence is  required.  Proceedings  to  reverse  or  modify  divorce 
shall  not  be  taken  until  six  months  after  entry  of  decree.  Until 
such  proceedings  are  taken,  or  while  an  appeal  is  pending, 
neither  party  shall  marry  again  ;  and  such  marriage  shall  be 
bigamy,  punishable  as  above  stated. 

NEVADA. 

Every  person  who  shall  take  any  woman  unlawfully,  against 
her  will,  and  by  force,  menace,  or  duress  compel  her  to  marry 
him  or  to  marry  any  other  person  or  to  be  defiled,  on  convic- 
tion shall  be  imprisoned  not  less  than  two  nor  more  than  four- 
teen years,  and  the  record  of  such  conviction  shall  operate  as 
a  divorce. 


266  THE   GEOGRAPHY  OF  MARRIAGE. 

Every  person  who  shall  falsely  represent  or  personate 
another,  and  in  such  assumed  character  shall  marry  another, 
shall,  upon  conviction,  be  punished  by  imprisonment  not  less 
than  one  nor  more  than  two  years,  or  by  fine  not  exceeding 
$5,000. 

Marriages  prohibited  on  account  of  consanguinity  or  bigamy, 
solemnized  in  Nevada,  are  void  without  decree  of  divorce  or 
legal  proceedings.  When  a  marriage  is  supposed  to  be  void, 
or  its  validity  disputed  by  reason  of  want  of  age  or  understand- 
ing, or  for  fraud,  either  party  may  file  a  bill  in  the  Probate 
Court  to  have  the  same  annulled.  Illegitimate  children  become 
legitimate  by  the  subsequent  marriage  of  their  parents. 

How  to  Marry. — Marriage  may  be  solemnized  by  any 
ordained  minister,  who  has  obtained  a  license  from  the  district 
court  of  any  county  or  district  in  the  State  of  Nevada,  or  by 
any  judge  of  a  district  court  in  his  district,  or  justice  of  the 
peace  in  his  county.  In  order  that  a  minister  may  procure  a 
license  he  must  produce  to  the  district  court  credentials  of  his 
being  a  regularly  ordained  minister  of  any  religious  society  or 
congregation,  and  will  then  be  entitled  to  a  license  to  solem- 
nize marriages.  He  must  also  produce  his  license  to  the 
county  clerk  in  every  county  in  which  he  shall  solemnize  any 
marriage,  and  the  clerk  must  enter  his  name  upon  the  record 
as  "authorized  to  do  so.  Parties  desiring  to  marry  must  pro- 
cure a  license  from  the  county  clerk  of  the  county  where  one 
of  them  resides,  or,  if  both  are  non-residents,  then  from  the 
clerk  of  any  county.  If  the  groom  is  under  twenty-one,  or  the 
bride  is  under  eighteen,  the  consent  of  the  parent  or  guardian 
must  first  be  obtained  (see  Marriage  of  Children).  Clerk's  fee 
for  license,  $1  ;  and  if  he  issues  a  license  contrary  to  law  he 
shall-forfcit  a  sum  not  exceeding  $1,000. 

It  is  a  misdemeanor  for  a  minister  or  other  officer  to  join 
persons  in  marriage  until  the  parties  exhibit  their  marriage 
license,  punishable  by  fine  not  exceeding  $500,  or  imprison- 
ment not  exceeding  six  months,  or  both.  And  if  such  officer 
attempts  to  join   persons  in  marriage  knowing  of  any  legal 


MARRIAGE  IN  THE  UNITED   STATES.  267 

impediment  thereto,  the  fine  shall  not  exceed  $500,  and  im- 
prisonment until  the  same  is  paid. 

In  the  solemnization  of  marriage  no  particular  form  shall  be 
required,  except  that  the  parties  shall  declare  in  the  presence 
of  the  judge,  minister,  or  magistrate,  and  the  attending  wit- 
nesses, that  they  take  each  other  as  husband  and  wife  ;  and  in 
every  case  there  shall  be  at  least  two  witnesses  present  beside 
the  person  performing  the  ceremony.  When  a  marriage  shall 
have  been  solemnized  the  celebrant  shall  give  to  each  party,  if 
required,  a  certificate  thereof,  specifying  the  names  and  resi- 
dences of  the  parties  and  of  at  least  two  witnesses,  and  the 
time  and  place  of  the  marriage.  He  shall  also  make  a  record 
thereof,  and  within  three  months  deliver  to  the  recorder  of 
deeds  of  the  county  where  the  wedding  took  place  a  certificate 
in  the  follawing  form  : 


[ 


State  of  Nevada, 
County  of  ) 

This  is  to  certify  that  the  undersigned,  a  Justice  of  the  Peace 
of  said  county  [or  other  officer,  as  the  case  may  be],  did,  on 
the  loth  day  of  June,  18  ,  join  in  lawful  wedlock,  Percy  I. 
Pain  and  Atossa  Ake,  with  their  mutual  consent,  in  presence 
of  Herbert  Wise  and  Henry  Joy,  witnesses. 

Jerome  Joy, 
Justice  of  the  Peace. 


The  certificate  must  be  filed  by  the  recorder  in  a  book,  and 
he  shall  receive  a  fee,  $r,  from  celebrant,  which  he  must 
receive  from  the  couple  before  the  marriage.  For  neglect  to 
file  such  certificate,  the  fine  is  not  less  than  $20  nor  more  than 
$50.  For  making  a  false  certificate,  the  fine  is  a  sum  not  ex- 
ceeding $500  or  imprisonment  not  exceeding  one  year,  or  both. 

Any  person  undertaking  to  perform  marriage,  knowing  he  has 
no  right  to  do  so,  or  knowing  of  any  legal  impediment,  is 
liable  to  a  fine  not  exceeding  $500,  and  imprisonment  until 
the  fine  is  paid. 

No  marriage  solemnized  before  any  person  professing  to  be 


268  THE   GEOGRAPHY  OF  MARRIAGE. 

a  judge,  justice,  or  minister  shall  be  void,  provided  it  be  con- 
summated with  a  full  belief  on  the  part  of  the  persons,  or 
either  of  them,  that  they  have  been  lawfully  wedded. 

Marriages  of  "  Friends,"  or  "  Quakers,"  in  the  forms  in  use 
among  them  are  valid. 

Marriage  of  Children. — Male  persons  of  the  age  of 
eighteen  and  female  persons  of  the  age  of  sixteen  may  marry, 
but  if  the  male  is  under  twenty-one,  or  the  female  under 
eighteen,  the  consent  of  their  fathers  respectively,  or,  in  case 
of  his  death  or  incapacity,  then  of  their  mothers  or  guardians, 
must  first  be  obtained.  The  county  clerk,  before  granting  the 
license,  if  either  party  under  such  age  has  not  been  previously 
married,  must  receive  personally  such  consent,  or  a  certificate 
under  the  hand  of  such  parent  or  guardian,  attested  by  two 
witnesses,  one  of  whom  shall  appear  before  said  clerk  and 
make  oath  that  he  saw  the  parent  or  guardian  subscribe  the 
certificate,  or  heard  him  or  her  acknowledge  the  same  ;  where- 
upon the  clerk  is  authorized  to  issue  and  sign  the  license,  af- 
fixing thereto  the  seal  of  the  county.  If  in  any  other  manner 
he  shall  issue  or  sign  any  marriage  license,  he  shall  forfeit  and 
pay  a  sum  not  exceeding  $i,ooo.  In  no  case  shall  a  marriage 
be  adjudged  a  nullity  on  the  ground  that  one  of  the  parties 
was  under  age  of  legal  consent,  if,  after  attaining  such  age, 
they  freely  cohabited  together  as  husband  and  wife.  Children 
of  such  marriages  shall  not  be  deemed  illegitimate. 

Forbidden  Marriages  :  Relatives ;  Miscegenation. 
— Persons  marrying  must  not  be  nearer  of  kin  than  second 
cousins.  All  marriages  prohibited  by  law  on  account  of  con- 
sanguinity are  absolutely  void,  without  decree,  and  punishable 
by  imprisonment  not  less  than  one  nor  more  than  ten  years. 

If  any  white  man  or  woman  intermarry  with  any  black  per- 
son, mulatto,  Indian,  or  Chinese,  they  are  guilty  of  a  misde- 
meanor punishable  by  imprisonment  not  less  than  one  nor 
more  than  two  years.  And  persons  solemnizing  such  marri- 
ages are  guilty  of  a  misdemeanor  punishable  by  imprisonment 
not  less  than  one  nor  more  than  three  years. 


MARRIAGE  IN  THE  UNITED   STATES.  269 

Bigamy. — If  any  person  marry  while  a  former  husband  or 
wife  is  alive,  it  constitutes  bigamy,  Unless  the  accused  can 
show  that  his  or  her  husband  or  wife  has  been  continually 
absent  for  five  years,  the  accused  not  knowing  such  absent 
husband  or  wife  to  be  living,  or  that  the  prior  marriage  has 
been  dissolved  or  annulled.  The  punishment  is  a  fine  not 
exceeding  $1,000,  or  imprisonment  not  less  than  one  nor  more 
than  five  years.  If  the  second  marriage  was  out  of  Nevada, 
cohabitation  in  Nevada  thereafter  is  bigamy. 

If  an  unmarried  person  knowingly  marry  the  husband  or 
wife  of  another,  the  penalty  is  by  fine  not  less  than  $1,000,  or 
imprisonment  not  less  than  one  nor  more  than  two  years. 

Divorce. — May  be  decreed  for:  (i)  impotency  existing  at 
time  of  marriage  ;  (2)  adultery  ;  (3)  wilful  desertion  for  one 
year;  (4)  conviction  for  felony  or  infamous  crime  ;  (5)  habitual 
gross  drunkenness  of  either  party,  contracted  since  marriage, 
which  shall  incapacitate  such  party  from  contributing  his 
or  her  share  to  support  of  family  ;  (6)  extreme  cruelty  of 
either  party  ;  (7)  husband's  neglect  for  one  year  to  provide 
common  necessaries,  when  not  the  result  of  poverty  which  he 
could  not  avoid  by  ordinary  industry.  Six  months'  residence 
required. 

NEW   HAMPSHIRE. 

A  man  who  has  never  gone  through  the  formalities  of  wed- 
lock may  nevertheless  become  a  married  man  if  he  lives  with 
a  female  for  the  period  of  three  years  and  until  one  of  the 
parties  dies,  provided  the  couple  were  generally  reputed  to  be 
husband  and  wife.  This  rule  applies  also  in  Arizona  dur- 
ing the  life  time  of  the  parties.  (See  page  194.)  The  same 
rule  applies  to  the  woman.  Children  born  out  of  wedlock, 
where  the  parents  afterwards  marry  and  recognize  them, 
shall  inherit,  as  if  they  were  legitimate.  All  marriages  must 
be  recorded  annually,  alphabetically  in  the  office  of  the  secre- 
tary of  the  State  Board  of  Health  at  Concord. 


2/0  THE   GEOGRAPHY  OF  MARRIAGE. 

How  to  Marry. — Parties  desiring  to  marry  must  first  file 
notice  of  intention  to  do  so  with  the  clerk  of  the  town  where 
the  bride  and  groom  dwell,  to  be  recorded.  If  there  is  no 
clerk  in  the  town  where  they  live,  then  it  must  be  entered  in 
the  adjoining  town.  The  notice  must  contain  the  full  names, 
color,  occupation,  birthplace,  residence,  and  ages  of  the  bride 
and  groom,  and  whether  they  are  single  or  widowed  ;  also 
whether  first,  second,  or  other  marriage  ;  and  also  full  names, 
residences,  color,  occupation,  and  birthplace  of  parents  of 
both.  Fee  for  filing,  $i.  A  certificate  of  such  intention  em- 
bodying these  facts  must  be  delivered  by  the  clerk  to  the 
parties,  specifying  when  notice  of  intention  was  filed  ;  and  it 
must  be  delivered  to  the  person  solemnizing  the  marriage  be- 
fore he  proceeds.  Clerk's  fee,  $i.  And  parties  going  out  of 
the  State  to  marry,  and  returning,  must  file  a  declaration  of 
such  marriage  with  the  clerk  of  the  town  where  either  lived 
before  the  marriage,  within  seven  days  after  such  return,  under 
penalty  of  $io. 

Marriage  may  be  solemnized  by  any  justice  of  the  peace  in 
his  county,  or  by  any  minister  of  the  gospel  in  the  State  in 
good  standing,  or  by  any  minister  out  of  the  State  commis- 
sioned by  the  governor,  or  by  a  minister  out  of  the  State,  but 
having  a  pastoral  charge  wholly  or  partly  in  New  Hampshire. 

The  secretary  of  the  State  Board  of  Health  is  made  the 
registrar  of  vital  statistics,  and  must  furnish  persons  authorized 
to  celebrate  marriage  with  printed  blanks  to  be  filled  out, 
which  must  state  the  date  and  place  of  marriage,  the  name, 
residence,  and  official  character  of  the  person  who  solemnized 
it,  and  also  all  the  facts  embraced  in  the  notice  of  intention  to 
marry.  The  celebrant  must  make  a  record  of  the  marriage, 
and  fill  out  accurately  the  printed  blanks  furnished  him,  and 
return  it  within  six  days  to  the  town  clerk  where  the  intention 
was  recorded.  The  clerk  must  keep  a  chronological  record  of 
all  marriages,  and  in  January  of  each  year  transmit  a  copy  of 
the  record  to  the  secretary  of  the  State  Board  of  Health,  or 
registrar,  for  the  year  ending  December  31st  preceding,  and 


MARRIAGE  IN  THE  UNITED    STATES.  2/1 

the  names  of  all  persons  failing  to  make  returns.  The  regis- 
trar must  arrange  and  record  these  returns  in  his  ofifice  alpha- 
betically. Failure  to  perform  any  of  these  duties  subjects  the 
party  to  a  fine  not  exceeding  $ioo.  Quakers  may  marry  in 
accordance  with  the  custom  usually  practised  among  them. 
The  marriage  fee  is  $i.  Persons  not  authorized  to  do  so,  who 
shall  join  persons  in  marriage,  with  or  without  a  certificate, 
shall  be  fined  not  exceeding  $300.  But  no  marriage  solem- 
nized before  any  person  professing  or  pretending  to  be  a  justice 
or  minister,  shall  be  void,  for  that  reason  or  for  any  omission 
or  informality,  provided  the  bride  and  groom,  or  one  of  them, 
acted  in  good  faith.  For  joining  persons  in  marriage  without 
a  certificate,  the  celebrant  shall  forfeit  $60  for  each  offence. 

Marriage  of  Children. — The  statutes  are  silent  upon  the 
question  of  marriage  of  children,  except  to  declare  that  the 
age  of  consent  shall  be  twelve  years  as  to  the  bride,  and  four- 
teen years  as  to  the  groom. 

Forbidden  Marriages  :  Relatives. — No  man  shall  marry 
his  father's  sister,  mother's  sister,  father's  widow,  wife's  mother, 
daughter,  wife's  daughter,  son's  widow,  sister,  son's  daughter, 
daughter's  daughter,  son's  son's  widow,  daughter's  son's  widow, 
brother's  daughter,  or  sister's  daughter,  father's  brother's 
daughter,  mother's  brother's  daughter,  father's  sister's  daugh- 
ter, or  mother's  sister's  daughter.  No  woman  shall  marry  her 
corresponding  relatives. 

All  such  marriages  are  void,  without  decree,  and  the  issue 
illegitimate  ;  and  the  parties  shall  be  imprisoned  not  exceeding 
one  year  and  fined  not  exceeding  $500,  or  imprisoned  not 
exceeding  three  years. 

Bigamy. — If  any  person  having  a  husband  or  wife  alive 
shall  marry  another,  such  person  shall  be  guilty  of  bigamy, 
unless  the  accused  can  show  that  his  or  her  husband  or  wife 
has  been  absent  and  not  heard  of  for  the  space  of  three  years 
together,  or  shall  be  reported  and  generally  believed  to  be 
dead,  or  that  the  accused  has  been  legally  divorced,  or  that 
the  first  marriage  took  place  when  the  bride  was  under  twelve 


2/2  THE   GEOGRAPHY  OF  MARRIAGE. 

years  old  or  the  groom  was  under  fourteen.     The  punishment 
for  bigamy  is  the  same  as  in  cases  of  marrying  relatives. 

Divorce. — No  divorce  will  be  granted  for  any  cause  save 
adultery,  unless  the  cause  is  in  existence  at  time  of  filing  the 
petition.  It  may  be  granted  to  innocent  party  for  :  (i)  impo- 
tency  ;  (2)  adultery  ;  (3)  extreme  cruelty  ;  (4)  conviction  of 
crime  punishable  with  more  than  one  year's  imprisonment  and 
actual  imprisonment  thereunder  ;  (5)  treatment  seriously  in- 
juring health  ;  (6)  treatment  endangering  reason  ;  (7)  three 
years'  absence  without  being  heard  from  ;  (8)  habitual  drunk- 
enness for  three  years  ;  (9)  joining  religious  sect  holding  mar- 
riage unlawful,  and  refusal  for  six  months  to  cohabit  ;  (10) 
husband's  wilful  absence  for  three  years,  making  no  provision 
for  wife  ;  (11)  wife's  wilful  absence  for  three  years  without  his 
consent ;  (12)  wife's  residence  out  of  State  ten  years,  without 
his  consent  and  without  claiming  marital  rights  ;  (13)  to  wife 
of  citizen  or  alien  who  has  lived  three  years  in  New  Hamp- 
shire whose  husband  having  left  United  States  to  become 
citizen  of  another  country,  has  not  come  into  the  State  and 
claimed  marital  rights  or  made  provision  for  v/ife  during  that 
time.     Actual  residence  for  one  year  required. 

NEW    JERSEY. 

New  Jersey  statutes  prescribe  no  particular  form  for  cele- 
brating the  marriage  ceremony.  The  laws  are  silent  on  many 
questions,  and  recourse  must  be  had  to  the  decisions  of  the 
courts  on  various  points. 

If  any  person  shall  unlawfully  take  any  maid,  widow,  or  wife, 
contrary  to  her  will,  and  shall  marry  her,  or  cause  her  to  be 
married  to  another,  either  with  or  without  her  consent,  or  de- 
file her,  or  cause  her  to  be  defiled,  may,  together  with  his  aiders 
and  abettors,  be  fined  not  exceeding  $1,000,  or  imprisoned  not 
exceeding  twelve  months  at  labor,  or  both,  and  every  such 
marriage  shall  be  void.  For  punishment  in  case  of  children, 
see  Marriage  of  Children. 

How  to  Marry. — Every  judge  of  any  Court  of  Common 
Picas,  and  justice  of  the  peace,  recorder,  and  police  justice,  and 


MARRIAGE  IN  THE  UNITED   STATES.  273 

mayor  of  a  city  of  this  State,  and  every  stated  and  ordained 
minister  of  the  gospel,  is  authorized  to  solemnize  marriages  be- 
tween such  persons  as  may  lawfully  enter  into  the  matrimonial 
relation,  and  every  religious  society  in  New  Jersey  may  join  to- 
gether in  marriage  such  persons  as  are  of  such  society,  or  when 
one  of  such  persons  is  of  such  society,  according  to  the  rules  and 
customs  of  the  society  to  which  they  or  either  of  them  belong. 

The  respective  clerks  of  the  Court  of  Common  Pleas  in  and 
for  the  several  counties  of  the  State  shall  register  and  record 
all  returns  of  marriages,  in  a  book  kept  for  that  purpose,  with- 
in one  calendar  month  after  receiving  the  same,  and  every  per- 
son authorized  to  solemnize  marriages,  and  the  clerk  or  keeper 
of  the  minutes  of  every  religious  society,  before  which  any 
marriage  shall  be  solemnized,  must  keep  a  register  of  every 
marriage,  and  shall  transmit  to  such  clerk  a  certificate  thereof, 
within  thirty  days,  which  shall  show  the  name,  age,  parentage, 
birthplace,  occupation,  and  residence,  of  the  parties  married, 
the  time  and  date  of  the  marriage,  the  condition  of  each  of  the 
parties,  whether  single  or  widowed,  the  name  of  the  clergyman 
or  magistrate  officiating,  and  the  names  and  residences  of  the 
witnesses,  and  for  neglecting  to  do  so,  the  party  is  liable  to  a 
penalty  of  $10.  The  clerk  is  entitled  to  a  fee  of  twelve  cents 
for  making  the  record,  to  be  paid  by  the  bride  and  groom,  and 
for  failure  to  record  the  return  within  the  time,  shall  forfeit 
$100,  and  costs,  to  be  paid  to  any  person  suing  for  it.  Making 
a  false  return  by  any  person  is  a  misdemeanor,  punishable  by 
fine  or  imprisonment,  or  both,  in  the  discretion  of  the  court. 

The  Secretary  of  State  must  also  furnish  suitable  books  to  the 
clerks  of  the  several  townships  in  the  State,  in  which  the  town 
clerk  must  keep  a  register  of  the  marriages  (and  births  and  deaths) 
reported  to  him  by  the  assessor  of  the  township.  The  Secretary 
of  State  must  make  a  report  thereof  annually  to  the  Legislature. 

Marriage  of  Children. — No  person  having,  or  pretending 
to  have,  authority  to  join  persons  in  marriage,  shall  marry  any 
male  under  the  age  of  twenty-one,  or  female  under  the  age  of 
eighteen,  unless  the  parent  or  parents,  guardian  or  guardians, 
or  person  or  persons  under  whose   care   or   government  the 


274 


THE   GEOGRAPHY  OF  MARRIAGE. 


minors  shall  be,  be  present  and  consent,  or  give  a  certificate  in 
writing,  proved  to  be  genuine  by  the  oath  or  affirmation  of  at 
least  one  person  of  full  age  and  discretion,  who  was  present  at 
the  signing  and  affixed  his  name  as  a  witness,  which  certificate 
must  be  produced  at  the  marriage,  and  the  celebrant  may  take 
such  oath,  and  enter  it  upon  the  back  of  such  certificate. 

If  the  celebrant  is  not  satisfied  with  the  declarations  of  the 
bride  and  groom  that  they  are  of  lawful  age,  he  may  adminis- 
ter an  oath  or  affirmation  that  they  are  of  lawful  age,  of  which 
he  shall  make  a  certificate  and  file  it  with  the  record,  which 
certificate  shall  be  his  justification  should  the  parties  deceive 
him.  For  marrying  any  minor  contrary  to  the  above  provi- 
sions the  celebrant  shall,  for  every  offence,  forfeit  $300  at  the 
suit  of  the  parent  or  guardian,  one  half  to  go  to  the  plaintiff 
and  the  other  half  to  the  State  Treasurer. 

If  any  person  shall  unlawfully  convey  or  take  away  any 
woman  child,  unmarried,  whether  legitimate  or  illegitimate, 
being  within  the  age  of  fifteen  years,  out  of  or  from  the  posses- 
sion, custody,  or  governance,  and  against  the  will,  of  the  father, 
mother,  or  guardian  of  such  woman  child,  though  with  her 
own  consent,  with  an  intent  to  seduce,  deflower,  or  contract 
matrimony  with  her,  he  is  guilty  of  a  high  misdemeanor  if  he 
marries  or  deflowers  her,  and  may  be  fined  not  exceeding 
$1,000,  and  imprisoned  at  labor  not  exceeding  five  years,  or 
either,  and  every  such  marriage  shall  be  void. 

Forbidden  Marriages  :  Relatives. — 

No  Man  Shall  Marry 


His  grandmother. 

His  daughter's  son's  wife. 

His  grandfather's  wife. 

His  mother. 

His  wife's  grandmotlier. 

His  step-mother. 

His  fatlier's  sister. 

His  wife's  mother. 

His  mother's  sister. 

His  daughter. 

His  son's  wife. 

His  wife's  daughter. 

His  sister. 

His  wife's  son's  daughter. 

His  son's  (laughter. 

His  wife's  daughter's  daughter. 

His  daughter's  daughter. 

His  brother's  daughter. 

His  son's  son's  wife. 

His  sister's  daughter. 

No  woman  shall  marry  her  corresponding  relatives. 


MARRIAGE  IN  THE  UNITED   STATES.  2/5 

All  persons  who  shall  intermarry  within  these  prohibited 
degrees,  shall,  on  conviction,  be  punished  by  fine  not  exceed- 
ing $500,  or  imprisonment  at  labor  not  exceeding  eighteen 
months,  or  both,  in  the  discretion  of  the  court.  But  if  the 
relationship  of  the  parties  is  that  of  parent  and  child,  the  pun- 
ishment is  a  fine  not  exceeding  $1,000,  or  imprisonment  at 
labor  not  exceeding  fifteen  years,  or  both. 

Bigamy. — If  any  person  being  married  shall  marry  another, 
it  is  bigamy,  unless  the  accused  can  show  that  his  or  her  hus- 
band or  wife  shall  have  continually  remained  without  the 
United  States  five  years,  or  shall  have  absented  himself  or  her- 
self for  five  years  within  the  State  or  within  the  United  States, 
the  one  not  knowing  the  other  to  be  living  within  that  time  ; 
or  that  the  accused  has  been  divorced  by  a  court  of  competent 
authority,  having  cognizance  thereof  ;  or  that  his  or  her  prior 
marriage  has  been  declared  null  and  void  by  such  courts  ;  or 
that  such  former  marriage  was  had  or  made  or  to  be  had  or 
made  by  such  parties  within  the  age  of  consent.  The  penalty 
for  bigamy  is  by  fine  not  exceeding  $r,ooo  and  imprisonment 
at  labor  not  exceeding  ten  years,  or  either,  in  the  discretion  of 
the  court. 

Divorce. — Maybe  granted  where  either  party  had  husband 
or  wife  living  at  time  of  marriage.  Such  marriage  is  void. 
Also  (i)  where  parties  are  within  prohibited  degrees  ; 
(2)  adultery  ;  (3)  wilful,  continued,  and  obstinate  desertion 
for  three  years.  Complainant  must  be  resident  at  time  of 
injury.  Otherwise,  or  where  adultery  was  committed  out 
of  New  Jersey,  three  years'  residence  required.  Divorce 
from  "  bed  and  board  "  granted  for  extreme  cruelty  in  either 
party. 

NEW   MEXICO. 

New  Mexico,  which  contains  a  large  Mexican  and  mon 
Spanish  population,  defines  the  marital  duties  and  obligat 
as  follows  :  "  The  husband  is  the  head  of  the  family  ; 
nevertheless,  owes  fidelity,  favor,  support,  and  protection  to 


276  THE   GEOGRAPHY  OF  MARRIAGE. 

the  wife  ;  he  should  make  her  a  participant  in  all  the  conven- 
iences he  enjoys  ;  he  should  show  her  the  utmost  and  every 
attention  in  cases  of  sickness,  misfortune,  or  accident,  and 
provide  for  her  the  necessaries  of  life  according  to  his  condi- 
tion and  ability  ;  and  the  wife  owes  fidelity  and  obedience  to 
the  husband  ;  she  is  obliged  to  live  with  him,  and  accompany 
him  to  such  place  as  he  may  deem  proper  and  advantageous 
to  make  his  residence."  For  failure  to  perform  these  duties, 
the  injured  party  may  go  before  a  justice  of  the  peace,  who 
shall  forthwith  dispatch  his  compulsory  writ,  compelling  de- 
fendant to  immediately  appear.  He  must  then  reconcile  the 
parties,  if  he  can,  and  has  power  to  imprison  the  offender. 

Marriage  is  declared  to  be  a  civil  contract,  to  which  assent 
of  parties  capable  of  contracting  is  essential.  It  is  declared 
that  all  marriages  celebrated  elsewhere,  if  valid  where  con- 
tracted, shall  be  valid  in  New  Mexico. 

Persons  who  live  together  without  being  married  may  be 
compelled  to  marry,  by  a  justice  of  the  peace,  if  there  be  no 
impediment  thereto  ;  and  for  refusal,  or  if  there  is  a  lawful 
impediment  to  the  marriage,  they  shall  be  fined  not  less  than 
$25  nor  more  than  $80,  every  time  they  are  found  living  to- 
gether. 

Any  person  who  by  force,  menace,  or  duress,  compels  a 
woman  against  her  will  to  marry  him,  or  to  marry  any  other 
person,  is  punishable  by  imprisonment  not  less  than  three  nor 
more  than  ten  years,  or  by  fine  not  less  than  $1,000,  or  by 
both.  If  the  female  is  under  fourteen,  the  crime  is  abduction. 
(See  Marriage  of  Children.) 

Slandering  married  people,  or  interfering  with  their  private 
affairs  in  such  manner  that  disagreement  may  result  between 
husband  and  wife,  is  punishable  by  fine  as  in  case  of  concu- 
binage. Children  legitimatized  by  a  subsequent  marriage  are 
as  direct  heirs  as  legitimate  children,  with  the  exception  of 
the  right  of  primogeniture. 

How  to  Marry. — Those  who  may  desire  may  solemnize 
the  contract  of  matrimony  by  means  of  any  ordained  clergy- 


MARRIAGE  IN  THE  UNITED   STATES.  277 

man,  without  regard  to  the  sect  to  which  he  may  belong,  or  by 
means  of  any  civil  magistrate.  It  shall  also  be  lawful  for  any 
religious  society  to  celebrate  marriage  conformably  with  the 
rites  and  customs  thereof.  Whoever  solemnizes  marriage  must, 
before  doing  so,  ascertain  from  the  bride  and  groom  that  they 
are  not  incapable  of  contracting  ;  that  they  are  free,  and  in  no 
way  bound  by  any  species  of  marriage  contract  with  any  other 
person,  and  are  unmarried  ;  and  evidence  on  these  points 
must  be  given  by  well  known  and  credible  persons.  The  cele- 
brant must  also  keep  a  register  of  all  marriages,  and  must  on 
the  first  days  of  January  and  July  in  each  year,  or  at  every 
regular  term  of  the  Probate  Court  of  each  county,  transmit  to 
the  clerk  of  the  Probate  Court  of  each  county  where  the  wed- 
ding took  place  a  certificate  containing  the  full  names  of  all 
persons  united  in  marriage  before  him,  with  the  date  of  such 
marriage  ;  and  for  failure  to  do  so  shall  be  fined  not  less  than 
$20  nor  m.ore  than  $50.  And  the  secretary  of  every  religious 
society,  or  person  presiding  over  the  same,  must  do  likewise  ; 
and  for  neglect  to  do  so  shall  incur  a  like  penalty.  The  clerk 
of  each  Probate  Court  must  record  all  reports  of  marriages 
made  to  him  in  a  book  to  be  kept  for  that  purpose  ;  and  for 
failure  to  do  so  shall  be  fined  not  less  than  $50  nor  more  than 
$100.  [They  must  be  recorded  also  pursuant  to  the  Act  of 
Congress  in  Probate  Court.  See  note  foot  of  page  194.]  For 
making  a  false  return  or  false  record  of  any  marriage,  or  for 
celebrating  marriage  contrary  to  law,  the  punishment  is  fine 
not  less  than  $100,  or  imprisonment  at  labor  not  less  than 
three  months,  or  both  fine  and  imprisonment. 

Marriage  of  Children. — If  the  groom  is  under  twenty- 
one,  or  the  bride  is  under  eighteen,  they  are  respectively  for- 
bidden to  marry  wdthout  the  consent  of  the  parent,  guardian, 
or  person  under  whose  charge  the  party  may  be  ;  and  the  per- 
son to  give  such  consent  must  be  present,  or  consent  in  writ- 
ing duly  authenticated.  All  marriages  between  parties  under 
those  ages  are  invalid  ;  and  in  case  of  such  marriages,  the 
guilty  parties,  and  the  person  performing  the  ceremony,  shall 


2/8  THE    GEOGRAPHY  OF  MARRIAGE. 

be  fined  not  less  than  $50.  But  a  marriage  of  persons  under 
age  is  not  void  until  it  is  so  declared  by  a  decree  of  the  court, 
after  suit  brought  to  annul  it  ;  and  such  a  suit  cannot  be 
brought  by  either  party  after  he  or  she  has  passed  the  age 
when  such  person  is  forbidden  to  marry  without  consent.  If 
the  bride  brings  the  suit  before  she  arrives  at  the  age  of  eigh- 
teen, the  court  may  award  her  alimony,  until  she  becomes  of 
age,  or  remarries.  The  children  of  such  marriages  are  legiti- 
mate. If  minors  live  together  until  the  age  of  consent  is 
passed,  the  marriage  becomes  valid. 

Any  person  who  takes  a  female  under  the  age  of  fourteen 
years,  without  the  consent  of  her  father,  mother,  guardian,  or 
other  person  having  legal  charge  of  her  person,  for  the  pur- 
pose of  marriage,  or  takes  or  detains  a  female  unlawfully 
against  her  will,  with  intent  to  compel  her  by  force,  menace, 
or  duress,  to  marry  him,  or  to  marry  any  other  person,  is 
guilty  of  abduction,  and  punishable  by  imprisonment  not  more 
than  five  years,  or  by  fine  not  less  $1,000,  or  by  both. 

Forbidden  Marriages  :  Relatives. — All  marriages  be- 
tween relatives  and  children,  including  grandfathers  and 
grandchildren  of  all  degrees  ;  between  half-brothers  and  sis- 
ters, as  also  brothers  and  sisters  of  full  blood  ;  between  uncles 
and  nieces,  aunts  and  nephews,  are  absolutely  void,  whether 
the  children  referred  to  are  illegitimate  or  legitimate.  Persons 
celebrating  such  marriages  shall  be  fined  not  less  than  $50 ; 
and  the  guilty  bride  and  groom  may  be  fined  likewise,  or 
imjjrisoned  not  more  than  one  year. 

Bigamy. — Every  person  who  shall  be  convicted  of  bigamy 
or  polygamy  shall  be  imprisoned  not  more  than  seven  nor  less 
than  two  years.  The  defences  to  the  charge  are  found  in  the 
decisions  of  the  courts  declared  from  time  to  time. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  cruel  or 
inhuman  treatment  ;  (3)  abandonment  ;  (4)  habitual  drunken- 
ness on  the  jjart  of  either  ;  or  (5)  neglect  on  part  of  husband 
to  support  wife.  Six  months'  residence  required.  Proof  must 
])e  strict,  and  must  be  sustained  by  at  least  one  witness  besides 
complainant. 


MARRIAGE  IN  THE    UNITED   STATES.  279 

NEW   YORK. 

A  person  who  by  force,  menace,  or  duress  compels  a  woman 
against  her  will  to  marry  him,  or  to  marry  any  other  person,  or 
to  be  defiled,  is  punishable  by  imprisonment  for  not  less  than 
three  nor  more  than  ten  years,  or  by  a  fine  of  not  more  than 
$1,000,  or  by  both.  A  person  Avho  takes  a  female  under  the 
age  of  sixteen  years,  without  the  consent  of  her  father,  mother, 
guardian,  or  other  person  having  legal  charge  of  her  person, 
for  the  purpose  of  marriage,  or  for  immoral  purposes  ;  or  takes 
or  detains  a  woman  unlawfully  against  her  will,  with  the  intent 
to  compel  her  by  force,  menace,  or  duress  to  marry  him,  or  to 
marry  any  other  person,  or  to  be  defiled,  is  guilty  of  abduction, 
and  punishable  by  imprisonment  for  not  more  than  five  years, 
or  by  fine  not  more  than  $1,000,  or  by  both.  Females'  testi- 
mony in  such  cases  must  be  supported  by  other  evidence. 

When  either  of  the  parties  shall  be  incapable  for  want  of 
age  or  understanding  of  consenting  to  a  marriage,  or  shall  be 
incapable  from  physical  causes  of  entering  into  the  marriage 
state,  or  when  the  consent  of  either  party  shall  have  been  ob- 
tained by  force  or  fraud,  the  marriage  shall  be  void  from  the 
time  its  nullity  shall  be  declared  by  a  court  of  competent 
authority. 

How  to  Marry. — Marriage,  so  far  as  its  validity  in  law  is 
concerned,  is  a  civil  contract,  to  which  consent  of  parties 
capable  in  law  of  contracting  shall  be  essential.  The  parties 
may  contract  marriage  themselves,  without  the  aid  or  presence 
of  a  minister,  magistrate,  or  witnesses,  by  words  of  the  present. 
But  for  the  purpose  of  being  registered  and  authenticated  ac- 
cording to  law,  marriage  shall  be  solemnized  only  by  the  follow- 
ing persons  :  Ministers  of  the  gospel  or  of  legally  incorporated 
religious  congregations,  and  priests  of  every  denomination  ; 
mayors,  recorders,  and  aldermen  of  cities  ;  judges  of  the 
county  courts,  and  justices  of  the  peace,  and  judges  and 
justices  of  courts  of  record.  These  provisions,  however,  do 
not  apply  to  Quakers,  who  may  solemnize  marriage  in  the 
manner  and  agreeably  to  the  regulations  of  their  societies  ; 
or    shall    the   parties  to  any  marriage,    or   any    minister   or 


280  THE   GEOGRAPHY   OF  MARRIAGE. 

magistrate  be  required  to  solemnize  marriage  in  the  manner 
prescribed. 

If  the  parties  are  not  personally  known  to  the  celebrant,  he 
shall  ascertain  from  them  respectively  their  right  to  contract 
marriage,  and  may  examine  them,  or  either  of  them  under 
oath,  which  he  is  authorized  to  administer,  and  the  examina- 
tion shall  be  reduced  to  writing,  and  subscribed  by  the  parties. 
Making  a  false  statement  under  oath  is  perjury.  A  celebrant- 
who  solemnizes  marriage,  where  either  of  the  parties  within  his 
knowledge  shall  be  under  the  age  of  legal  consent,  or  an  idiot 
or  lunatic,  or  to  which,  within  his  knowledge,  any  legal  impedi- 
ment exists,  is  guilty  of  a  misdemeanor,  punishable  by  impris- 
onment for  not  more  than  one  year,  or  by  fine  of  not  more  than 
$500,  or  by  both,  in  the  discretion  of  the  court. 

The  celebrant  shall  on  request  furnish  to  either  party  a  cer- 
tificate signed  by  him,  specifying  the  names  and  residences  of 
parties,  and  that  they  were  known  to  the  celebrant,  or  were 
satisfactorily  proved  by  the  oath  of  the  parties,  or  of  a  person 
known  to  the  celebrant,  to  be  the  persons  described  in  the 
certificate,  and  were  of  sufficient  age  to  contract  marriage, 
the  name  and  residence  of  witness,  or  witnesses,  and  time  and 
place  of  marriage.  It  must  also  state  that  after  due  inquiry 
made  there  appeared  no  lawful  impediment  to  the  marriage. 

The  clerk  of  the  city  or  town  where  the  marriage  was  cele- 
brated, or  where  either  party  resides,  shall  file  it  if  presented 
within  six  months,  and  enter  same  in  a  book. 

In  the  city  of  New  York  the  celebrant  must  keep  a  marriage 
register,  containing  name  and  surname  of  parties,  their  age, 
and  whether  single  or  widowed,  and  furnish  a  written  copy  of 
same  to  the  Board  of  Health  within  ten  days,  and  is  liable  to  a 
fine  of  $10  for  faihire  to  do  so.  In  Buffalo,  Albany,  Yonkers, 
and  Brooklyn,  and  in  incorporated  villages,  the  celebrant  or 
groom  at  every  marriage  must  make  return  to  the  Board  of 
Health  within  thirty  days,  and  failure  to  do  so,  or  failure  of  the 
board  to  register  the  same  or  forward  certificate  thereof  to 
State  Bureau  of  Vital  Statistics  is  a  misdemeanor. 


MARRIAGE  IN  THE  UNITED   STATES.  28 1 

Marriage  of  Children. — The  age  of  legal  consent  for  con- 
tracting marriage,  since  February  21,  1887,  is  eighteen  years  in 
the  case  of  males  and  sixteen  years  in  the  case  of  females. 
Taking  a  female  under  sixteen,  without  consent  of  parents  or 
guardian,  for  the  purpose  of  marriage,  constitutes  abduction  ; 
and  a  celebrant  who  knowingly  marries  a  person  under  the  age 
of  legal  consent  is  guilty  of  a  misdemeanor,  punishable  as 
above  stated.  From  1830  to  1887,  the  age  of  legal  consent 
was  twelve  years  in  females  and  fourteen  in  males. 

Forbidden  Marriages  :  Relatives. — Marriages  between 
parents  and  children,  including  grandparents  and  grandchildren 
of  every  degree,  ascending  and  descending,  and  between 
brothers  and  sisters  of  the  half  as  well  as  of  the  whole  blood, 
are  declared  to  be  incestuous  and  absolutely  void  ;  and  the 
guilty  parties  and  each  of  them  are  punishable  by  imprisonment 
for  not  more  than  ten  years. 

Bigamy. — A  person  who,  having  a  husband  or  wife  living, 
marries  another,  is  guilty  of  bigamy,  unless  it  can  be  shown  : 
(i)  that  the  former  husband  or  wife  has  been  absent  five  years 
successively,  without  being  known  to  the  accused  within  that 
time  to  be  living,  and  believed  by  the  accused  to  be  dead  ;  or 
(2)  that  the  former  marriage  has  been  pronounced  void,  an- 
nulled, or  dissolved  by  the  judgment  of  a  court  of  competent 
jurisdiction,  for  a  cause  other  than  the  adultery  of  the  accused  ; 
or  (3)  that  the  accused,  if  divorced  for  his  or  her  adultery,  has 
received  from  the  court  which  pronounced  the  divorce  permis- 
sion to  marry  again  ;  or  (4)  that  the  former  husband  or  wife 
has  been  sentenced  to  imprisonment  for  life.  Bigamy  is  pun- 
ishable by  imprisonment  for  not  more  than  five  years.  A 
person,  unmarried,  who  knowingly  marries  another,  if  such 
other  person  thereby  is  guilty  of  bigamy,  is  punishable  by 
imprisonment  for  not  more  than  five  years,  or  by  a  fine  of  not 
more  than  $1,000,  or  both. 

Divorce. — Absolute  divorce  may  be  granted  for  adultery. 
When  one  of  the  parties  has  been  convicted  of  crime  and  sen- 
tenced to  imprisonment  for  life,  it  will  not  constitute  bigamy 


282  THE   GEOGRAPHY   OF  MARRIAGE. 

for  the  other  party  to  remarry.  Divorce  from  bed  and  board, 
or  a  separation,  may  be  granted  for  :  (i)  cruel  and  inhuman 
treatment,  or  such  conduct  as  may  render  it  unsafe  or  im- 
proper for  the  plaintiff  to  cohabit  with  defendant  ;  (2)  aban- 
donment ;  or  (3),  where  wife  is  plaintiff,  the  neglect  or  refusal 
of  defendant  to  provide  for  her.  Parties  must  have  been 
married  in  New  York,  or  plaintiff  must  have  resided  there 
when  offense  was  committed  and  when  suit  is  commenced. 

Guilty  party  shall  not  marry  again  until  after  death  of  inno- 
cent party,  unless  such  innocent  party  has  remarried,  and  five 
years  have  elapsed  since  divorce  was  granted,  and  conduct  of 
guilty  party  has  since  that  time  been  uniformly  good,  when 
court  in  which  decree  was  granted  may  modify  it  by  allowing 
guilty  party  to  remarry.  Marriage  of  guilty  party  in  New  York 
without  having  disability  removed  is  void.  But  the  plaintiff 
and  defendant  may  remarry. 

NORTH   CAROLINA. 

Children  born  out  of  wedlock  can  only  become  legitimate 
upon  the  petition  of  the  father,  which  must  be  presented  to  the 
Superior  Court  of  the  county  where  he  resides,  and  if  it  appear 
that  such  petitioner  is  the  father  of  the  child,  the  court  may 
make  a  decree  to  that  effect,  which  shall  be  recorded  by  the 
clerk,  and  such  child  may  then  inherit  from  his  father  only. 

How  to  Marry. — Marriage  must  be  celebrated  in  the 
presence  of  an  ordained  minister  of  any  religious  denomina- 
tion, or  of  a  justice  of  the  peace  and  of  at  least  three  witnesses. 
The  bride  and  groom  must  consent  presently  to  take  each 
other  as  husband  and  wife,  freely,  seriously,  and  plainly  ex- 
pressed by  each  in  the  presence  of  the  other,  and  the  conse- 
quent declaration  must  be  made  by  such  minister  or  officer, 
that  such  persons  are  man  and  wife.  But  marriages  among 
Friends,  according  to  a  form  or  custom  peculiar  to  themselves, 
shall  not  be  interfered  with.  No  such  minister  or  officer, 
however,    shall   perform  the  ceremony,  or  declare   the  bride 


MARRIAGE  IN  THE  UNITED   STATES.  283 

and  groom  to  be  man  and  wife,  until  there  shall  be  delivered 
to  him  a  marriage  license  signed  by  the  register  of  deeds 
of  the  county  where  the  wedding  is  to  take  place,  or  his  lawful 
deputy. 

The  register  of  deeds,  upon  application,  shall  issue  to  per- 
sons over  eighteen  years  of  age  (or  by  parent's  or  guardian's 
consent  where  the  parties  are  younger — see  Marriage  of  Chil- 
dren) a  marriage  license,  provided  it  shall  appear  to  him  prob- 
able that  there  is  no  legal  impediment  to  such  marriage.  The 
form  of  the  license  is  prescribed  by  the  statute. 

If  it  shall  appear  that  it  is  probable  that  there  is  any  legal 
impediment  to  the  marriage,  the  register  has  power  to  admin- 
ister an  oath  to  the  applicant  touching  the  legal  capacity  of  the 
parties  to  contract  a  marriage. 

Every  register  who  shall  knowingly  or  without  reasonable 
inquiry  issue  a  marriage  license  where  there  is  any  lawful 
impediment,  or,  where  either  party  is  under  eighteen,  without 
consent  of  parents  or  guardians,  shall  forfeit  and  pay  $200. 
And  every  minister  or  officer  who  shall  marry  any  couple 
without  a  license,  or  after  the  license  shall  have  expired,  or 
shall  fail  to  return  such  license  to  the  register  within  two 
months  after  the  marriage,  with  the  certificate  duly  filled  up 
and  signed,  shall  forfeit  and  pay  $200,  and  is  guilty  of  a 
misdemeanor. 

The  register  must  enter  the  particulars  of  every  marriage 
alphabetically,  in  a  book  kept  for  that  purpose,  and  file  the 
original  license  ;  and  for  failure  to  do  so  .shall  forfeit  and  pay 
$200. 

Marriage  of  Children. — All  unmarried  male  persons  of 
sixteen  or  upwards,  and  all  unmarried  females  of  fourteen  or 
upwards,  may  lawfully  marry,  but  in  case  such  persons  are 
under  the  age  of  eighteen,  and  shall  reside  with  father  or 
mother,  uncle  or  aunt,  or  brother  or  elder  sister,  or  shall 
reside  at  school,  or  be  an  orphan  and  reside  with  a  guardian, 
the  register  shall  not  issue  a  license  for  such  marriage  until 
the  consent  in  writing  of  the  relation  with  whom  such  infant 


284  THE   GEOGRAPHY  OF  MARRIAGE. 

resides,  or  of  the  person  by  whom  such  infant  was  placed  at 
school,  and  under  whose  custody  and  control  he  or  she  is 
shall  be  delivered  to  him,  which  written  consent  must  be  filed 
and  preserved  by  the  register. 

All  marriages  between  a  male  under  sixteen  and  any  female, 
or  between  a  female. under  fourteen  and  any  male,  shall  be 
A'oid.  But  if  there  be  issue  of  such  a  marriage  it  shall  not  be 
declared  void  after  the  death  of  either  the  father  or  mother. 
Any  person  marrying  a  female  under  fourteen  is  guilty  of  a 
misdemeanor.  Obtaining  a  license  for  persons  under  lawful 
age  by  misrepresentation  or  false  pretences,  shall  be  a  mis- 
demeanor punishable  by  fine  not  exceeding  $50,  or  imprison- 
ment not  exceeding  thirty  days,  or  both. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. 
— All  marriages  between  any  two  persons  nearer  of  kin  than 
first  cousins  shall  be  void,  whether  the  kinship  be  of  the  half 
or  of  the  whole  blood,  but  if  there  be  issue  of  such  a  marriage 
it  shall  not  be  declared  void  after  the  death  of  either  the  father 
or  mother.  The  punishment  when  such  relatives  live  together 
as  husband  and  wife  shall  be  imprisonment  not  exceeding  five 
years,  in  the  discretion  of  the  court. 

All  marriages  between  a  white  person  and  a  negro  or  Indian, 
or  between  a  white  person  and  a  person  of  negro  or  Indian 
descent  to  the  third  generation  inclusive,  shall  be  void,  but  the 
law  now  confines  the  Indians  referred  to  to  the  Croatan  tribe. 
Persons  so  marrying  are  guilty  of  an  infamous  crime,  and  may 
be  imprisoned  not  less  than  four  months  nor  more  than  ten 
years,  and  may  also  be  fined  at  the  discretion  of  the  court. 
Issuing  a  license  to  such  persons,  or  performing  the  marriage 
ceremony,  constitutes  a  misdemeanor. 

Bigamy, — If  any  person,  being  married,  shall  marry  any 
other  person  during  the  life  of  the  former  husband  or  wife,, 
whether  the  second  marriage  shall  take  place  in  North  Caro- 
lina or  elsewhere,  and  those  aiding  or  abetting  such  marriage, 
is  guilty  of  felony,  unless  the  accused  can  show  that  his  or  her 
husband  or  wife  shall  have  been  continually  absent  for  seven 


MARRIAGE  IN  THE  UNITED   STATES.  285 

years  together,  and  shall  not  have  been  known  to  the  accused 
to  have  been  living  within  that  time,  or  that  he  or  she  has  been 
lawfully  divorced  from  the  bond  of  the  first  marriage,  or  w^hose 
first  marriage  shall  have  been  declared  void.  The  second 
marriage  is  void  ;  and  the  punishment  for  bigamy  is  imprison- 
ment not  less  than  four  months  nor  more  than  ten  years. 

Divorce. — Absolute  divorce  may  be  granted  for  :  (i)  impo- 
tency  at  time  of  marriage  continuing  at  time  of  suit  ;  (2)  if 
either  party  shall  separate  from  the  other  and  live  in 
adultery  ;  (3)  if  wife  shall  commit  adultery  ;  (4)  if  wife  be 
pregnant  at  time  of  marriage  without  knowledge  of  husband,  and 
if  he  be  not  the  father  of  the  child  with  which  she  is  pregnant. 
Divorce  from  bed  and  board  may  be  granted  for  :  (i)  abandon- 
ment by  either  party  ;  (2)  if  either  shall  maliciously  turn  the 
other  out  of  doors  ;  (3)  shall  by  cruel  and  barbarous  treatment 
endanger  the  life  of  the  other  ;  (4)  shall  offer  such  indignities 
to  the  person  as  to  render  his  or  her  condition  intolerable  and 
life  burdensome  ;  (5)  if  either  shall  become  an  habitual  drunk- 
ard.    Two  years'  residence  required. 

NORTH  DAKOTA. 

Admitted  into  the  Union  by  Act  of  Congress  approved  the 
22d  of  February,  1889.  Now  formulating  its  State  constitu- 
tion.    For  laws  see  Dakota. 

OHIO. 

Whoever  entices  or  persuades  a  married  person  to  join  any 
sect  or  denomination,  the  principles  and  practices  of  which 
inculcate  a  renunciation  of  the  matrimonial  contract,  shall  be 
fined  not  more  than  $500.  But  parties  are  not  forbidden  to 
deliver  a  public  sermon,  exhortation,  or  address  on  the  sub- 
ject. And  if  the  husband  joins  such  sect  the  wife  may  have 
proceedings  to  secure  her  share  of  the  husband's  property. 

Children  born  out  of  wedlock  become  legitimate  by  the  sub- 
sequent marriage  of  parents,  and  acknowledgment  by  father. 


286  THE   GEOGRAPHY  OF  MARRIAGE. 

How  to  Marry. — Previous  to  the  marriage,  notice  thereof 
shall  be  published  (in  the  presence  of  the  congregation)  on 
two  different  days  of  public  worship,  the  first  publication  to 
be  at  least  ten  days  previous  to  such  marriage,  within  the 
county  where  the  bride  resides,  or  a  marriage  license  must  be 
obtained  from  the  probate  judge  in  such  county,  unless  it  is 
the  probate  judge  himself  who  is  about  to  wed,  and  he  must 
get  his  license  from  the  Court  of  Common  Pleas.  The  probate 
judge  may  examine  the  parties  under  oath  to  ascertain  if  there 
be  any  legal  impediment  to  the  marriage,  and  if  he  is  satisfied 
there  is  none,  he  shall  grant,  sign,  and  affix  the  seal  of  the 
court  to  the  license.  His  fee  is  seventy-five  cents.  Ministers  of 
the  gospel  must  produce  to  the  probate  judge  credentials,  show- 
ing such  person  to  be  regularly  ordained.  He  shall  then  be 
entitled  to  a  license  authorizing  him  to  solemnize  marriages  in 
Ohio.  He  must  produce  this  license  to  the  probate  judge  of 
every  county  in  which  he  officiates,  and  the  judge  shall  there- 
upon record  his  name  as  a  minister  duly  authorized  to  solem- 
nize marriages,  and  note  the  county  from  which  the  license 
issues.  No  fee  shall  be  charged  therefor.  Marriage  may  be 
celebrated  by  any  ordained  minister  of  any  religious  society  or 
congregation  in  the  State  of  Ohio,  licensed  as  aforesaid,  or 
by  any  justice  of  the  peace  in  his  county,  or  the  several  religious 
societies,  agreeably  to  the  rites  and  regulations  of  their  respec- 
tive churches. 

A  certificate  of  every  marriage,  signed  by  the  justice  or 
minister,  whether  authorized  by  publication  of  banns  or  by 
license,  shall  be  transmitted  to  the  probate  judge  where  the 
license  was  issued,  within  three  months,  and  recorded,  and  for 
failure  to  transmit  or  record,  the  fine  is  $50.  In  Cincinnati 
returns  must  be  made  as  often  as  required  by  the  Board  of 
Health.  For  joining  persons  in  marriage  contrary  to  law,  the 
fine  shall  not  exceed  $1,000.  Persons  not  legally  authorized, 
who  shall  attempt  to  officiate,  shall,  upon  conviction,  forfeit  $500. 

Marriage  of  Children. — Males  of  eighteen  and  females 
of  sixteen  may  marry.     If  the  groom  is  under  twenty-one  and 


MARRIAGE  IN  THE  UNITED   STATES.  2S7 

the  bride  under  eighteen,  and  neither  is  a  widow  or  widower, 
the  probate  judge,  before  issuing  a  license,  must  have  the  per- 
sonal consent  of  the  parent  or  guardian,  or  the  consent  in 
writing,  signed  by  two  witnesses,  one  of  whom  must  swear 
before  the  judge  that  he  saw  such  parent  or  guardian  sub- 
scribe it,  or  acknowledge  it,  and  the  judge  shall  administer 
the  oath  to  such  witness  for  that  purpose,  and  shall  then  sign 
the  license,  and  affix  to  it  the  seal  of  the  county.  For  issuing 
the  license  contrary  to  law  he  shall  forfeit  $50.  And  if  such 
persons  are  married  without  a  license,  then  every  justice  or 
minister  who  performs  the  service  must  ascertain  that  the 
intention  of  marriage  between  them  has  been  duly  published, 
and  also  that  the  consent  of  such  parent  or  guardian  has  been 
obtained,  either  by  acknowledgment  in  presence  of  the  min- 
ister or  justice,  or  by  certificate  under  their  signature,  signed 
by  one  or  more  witnesses,  who  must  be  present  to  satisfy  the 
celebrant  that  the  certificate  was  actually  signed  by  such 
parent  or  guardian.  Solemnizing  marriage  contrary  to  law 
subjects  the  celebrant  to  a  fine  not  exceeding  $1,000. 

Forbidden  Marriages :  Relatives  ;  Miscegenation. 
— Persons  capable  of  marrying  must  not  be  nearer  of  kin  than 
second  cousins.  Punishment  for  persons  living  together  as 
husband  and  Awfe,  who  are  nearer  of  kin  by  consanguinity  or 
affinity  than  cousins,  having  knowledge  of  their  relationship,  is 
imprisonment  not  more  than  ten  years,  nor  less  than  one  year. 

A  person  of  pure  white  blood  who  intermarries  with  any 
negro,  or  person  having  a  distinct  and  visible  admixture  of 
African  blood,  and  any  negro  or  person  having  a  distinct  and 
visible  admixture  of  African  blood  who  intermarries  with  any 
person  of  pure  white  blood,  shall  be  fined  not  more  than  $100, 
or  imprisoned  not  more  than  three  months,  or  both.  And  the 
same  punishment  follows  for  knowingly  issuing  a  license  for 
such  marriage  or  solemnizing  it. 

Bigamy. — Whoever,  having  a  husband  or  wife,  marries 
another,  is  guilty  of  bigamy,  unless  the  accused  can  show  that 
his  or  her  husband  or  wife  has  been  continually  absent  for  five 


288  THE   GEOGRAPHY  OF  MARRIAGE. 

successive  years  next  before  such  marriage,  without  being 
known  to  the  accused  to  be  living  within  that  time.  The  pun- 
ishment is  imprisonment  not  more  than  seven  years  nor  less 
than  one  year. 

Divorce. — May  be  granted  :  (i)  when  either  has  a  husband 
or  wife  living  ;  (2)  wilful  absence  for  three  years  ;  (3)  adul- 
tery ;  (4)  impotency  ;  (5)  extreme  cruelty  ;  (6)  fraudulent 
contract ;  (7)  any  gross  neglect  of  duty  ;  (8)  habitual  drunk- 
enness for  three  years  ;  (9)  imprisonment  of  either  in  peniten- 
tiary under  sentence;  (10)  a  divorce  got  out  of  the  State, 
which  remains  binding  on  the  husband  or  wife  in  Ohio,  and 
releases  party  who  procured  it  from  obligations  of  the  mar- 
riage contract.     One  year's  residence  required. 

OREGON. 

Children  born  out  of  wedlock  become  legitimate  by  the  sub- 
sequent marriage  of  their  parents.  Marriages,  where  consent 
is  obtained  by  force  or  fraud,  can  only  be  set  aside  by  the  party 
imposed  upon. 

How  to  Marry. — Marriages  may  be  solemnized  by  any 
minister  or  priest  of  any  church  or  congregation  anywhere 
within  the  State,  and  by  any  judicial  officer  of^  the  State  any- 
where within  his  jurisdiction.  A  license  must  first  be  procured 
from  the  county  clerk  of  the  county  in  which  the  bride  resides, 
directed  to  any  person  or  religious  organization  or  congrega- 
tion authorized  by  law  to  solemnize  marriage,  authorizing 
such  person,  organization,  or  congregation  to  join  together 
the  persons  therein  named  as  husband  and  wife.  In  Mult- 
nomah County  the  license  must  be  issued  by  the  clerk  of 
the  county  court.  The  clerk  must  enter  in  the  marriage 
book,  before  delivering  the  license,  the  names  of  the  parties, 
consent  of  the  parents,  the  name  of  the  party  making  the 
affidavit,  and  the  substance  of  it,  and  date.  The  applicant 
must  first  file  with  the  clerk  an  affidavit  of  some  person  other 
than  the  applicant,  showing  the  consent  of  parents  or  guardian 


MARRIAGE  IN  THE  UNITED    STATES.  289 

in  case  of  minors,  and  any  facts  that  may  be  necessary  to  be 
shown  in  any  particular  case,  which  shall  be  sufiEicient  authority 
to  the  clerk,  so  far  as  the  facts  therein  set  forth  are  concerned. 
The  penalty  for  issuing  a  license  contrary  to  law  is  imprison- 
ment not  more  than  one  year,  or  a  fine  not  more  than  $500  nor 
less  than  $100.  The  bride  and  groom  must  produce  the  license 
before  the  ceremony  can  be  performed.  No  particular  form 
is  required,  except  that  the  bride  and  groom  shall  assent  or 
declare,  in  the  presence  of  the  minister,  priest,  or  judicial 
officer,  and  of  at  least  two  attending  witnesses,  that  they  take 
each  other  as  husband  and  wife.  The  celebrant  shall  give  to 
each,  if  required,  a  certificate  specifying  their  names  and  resi- 
dences, the  time  and  place  of  the  marriage,  date  of  license,  by 
whom  issued,  and  the  names  and  addresses  of  at  least  two  wit- 
nesses present  ;  and  he  must,  within  one  month,  return  also  to 
the  county  clerk  where  the  marriage  took  place,  a  certificate 
signed  by  him,  which  the  clerk  must  file  and  record,  and  the 
fees  therefor  must  be  paid  by  the  party  filing  it,  who  shall  be 
entitled  to  demand  it  from  the  bride  and  groom  at  the  wedding. 
All  marriages  to  which  there  is  no  legal  impediment,  solem- 
nized before  or  in  any  religious  organization  or  congregation, 
according  to  the  established  ritual  or  form  commonly  practised 
therein,  are  valid  ;  but  the  certificate  must  be  filed  as  in  other 
cases.  For  refusing  or  neglecting  to  file  or  record  such  cer- 
tificate, the  penalty  is  a  fine  of  not  less  that  $10  nor  more  than 
$50  for  every  five  days  of  such  neglect  or  refusal. 

A  person  attempting  to  join  others  in  marriage,  knowdng  he 
has  no  right  to  do  so,  or  contrary  to  law,  shall  be  imprisoned 
not  more  than  one  year,  or  fined  not  more  than  $500,  nor  less 
than  $100. 

A  marriage  solemnized  before  any  person  pretending  to  be 
priest,  minister,  or  officer,  shall  not  be  declared  void,  if  the 
bride  and  groom,  or  one  of  them,  acted  in  good  faith. 

Marriage  of  Children. — If  the  bride  is  under  fifteen,  or 
the  groom  is  under  eighteen,  a  marriage  license  shall  not  be 
issued.     If  the  bride  is  over  fifteen  and  under  eighteen,  or  if 


290  THE    GEOGRAPIIY   OF  MARRIAGE. 

the  groom  is  over  eighteen  and  Under  twenty-one,  a  license 
shall  not  issue  -without  the  written  consent  of  the  parent  or 
guardian,  if  there  be  any.  But  if  either  of  the  parties  have  no 
parent  or  guardian  residing  in  the  State,  and  the  bride  has  re- 
sided in  the  county  where  the  license  is  applied  for  six  months 
prior  to  the  application,  the  license,  if  otherwise  proper,  may 
be  issued  without  such  consent.  Affidavit  must  be  filed,  see 
above.  Marriage  for  want  of  legal  age  can  only  be  set  aside 
at  the  suit  of  the  party  under  such  legal  age. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
Where  the  bride  and  groom  are  nearer  of'kin  than  second 
cousins,  whether  of  the  whole  or  half  blood,  computing  by  the 
rules  of  the  civil  law  ;  and  where  either  of  the  parties  is  a  white 
person  and  the  other  a  negro,  or  a  person  of  one  fourth  or  more 
negro  blood,  the  marriage  is  prohibited.  The  punishment 
therefor  is  imprisonment  not  less  than  one  year,  nor  more  than 
three  years,  or  in  county  jail  not  less  than  three  months,  nor 
more  than  one  year,  or  by  fine  not  less  than  $200,  nor  more 
than  $1,000. 

The  criminal  law  of  Oregon  further  declares  that  it  shall  not 
be  lawful  for  any  white  person,  male  or  female,  to  intermarry 
with  any  negro,  Chinese,  or  any  person  having  one  fourth  or 
more,  negro,  Chinese,  or  Kanaka  blood,  or  any  person  having 
more  than  one  half  Indian  blood.  All  such  marriages  are  de- 
clared to  be  absolutely  void  ;  and  the  punishment  therefor  is 
imprisonment  not  less  than  three  months,  nor  more  than  one 
year,  and  for  issuing  to  such  persons  a  license,  or  for  mar- 
rying, or  aiding  in  such  marriage,  the  penalty  is  the  same,  and 
in  addition  thereto  a  fine  of  not  less  than  $100,  nor  more  than 
$r,ooo. 

Bigamy. — If  any  person  being  married,  shall  marry  another, 
it  is  bigamy,  unless  the  accused  can  show  that  his  or  her  hus- 
band or  wife  has  voluntarily  withdrawn  and  remained  absent 
seven  years  together,  the  accused  not  knowing  such  person  to 
be  living  within  that  time  ;  or  that  the  accused  has  been 
legally  divorced  from  the  prior  marriage.     The   punishment 


MARRIAGE  IN  THE  UNITED    STATES.  29 1 

for  bigamy  is  imprisonment  in  penitentiary  not  less  than  one 
year,  nor  more  than  four  years,  or  in  county  jail  not  less  than 
six  months,  nor  more  than  one  year,  or  fine  not  less  than  $300, 
nor  more  than  $1,000. 

Divorce. — May  be  granted  for:  (i)  impotency  ;  (2)  adul- 
tery ;  (3)  conviction  of  felony ;  (4)  habitual  gross  drunken- 
ness contracted  since  marriage,  continuing  two  years  prior  to 
suit ;  (5)  wilful  desertion  for  one  year  ;  (6)  cruel  and  inhuman 
treatment,  or  personal  indignities  rendering  life  burdensome. 
One  year's  residence  required. 

PENNSYLVANIA. 

Pennsylvania  statutes  declare  that  all  marriages  not  for- 
bidden by  the  law  of  God  shall  be  encouraged.  In  furtherance 
of  this  declaration  it  is  declared  that  they  shall  be  solemnized 
by  the  bride  and  groom  taking  each  other  for  husband  and 
wife,  and  the  law  makes  special  provision  for  parties  marrying 
themselves,  if  they  so  desire.  The  old  provisions  requiring 
twelve  witnesses,  and  posting  up  the  intention  to  marry  on  the 
court-house  or  meeting-house  doors  a  month  before  the  wed- 
ding, have  become  obsolete.  A  minister  or  magistrate  who 
marries  a  couple  when  either  the  bride  or  groom  is  intoxicated, 
shall  be  guilty  of  a  misdemeanor,  and  pay  a  fine  of  $50,  and 
be  imprisoned  not  exceeding  sixty  days.  Children  born  out 
of  wedlock,  whose  parents  subsequently  marry,  thereby 
become  legitimate. 

How  to  Marry. — Marriage  may  be  celebrated  by  any 
minister  of  the  gospel,  judge,  justice  of  the  peace,  or  alder- 
man, or  the  bride  and  groom  may  join  themselves  in  marriage, 
but  in  every  case  a  license  must  be  obtained  from  the  clerk  of 
the  Orphans'  Court  in  the  county  where  the  wedding  takes 
place,  and  the  legal  fee  for  such  license  is  fifty  cents.  If  the 
parties  desire  to  be  married  by  a  minister  or  magistrate,  the 
license  must  be  duly  numbered,  with  the  blanks  filled  out  in 
the  form  prescribed  by  the  statute. 


292  THE   GEOGRAPHY  OF  MARRIAGE. 

Appended  to  the  license  shall  be  two  certificates  numbered 
to  correspond,  one  marked  original,  the  other  duplicate,  in  the 
form  prescribed  by  the  statute. 

The  person  solemnizing  the  marriage  must  deliver  the  cer- 
tificate marked  "  original  "  to  the  bride  and  groom,  and  he 
must  return  the  "  duplicate  "  within  thirty  days  to  the  clerk  of 
the  Orphans'  Court  who  issued  it,  who  must  immediately  enter 
it  upon  the  marriage-license  docket. 

If  the  parties  desire  to  marry  themselves,  they  must  first  get 
from  the  Orphans'  Court  a  declaration  of  their  right  to  do  so, 
which  when  filled  out  will  be  in  the  following  form  : 

To  Clifford  Stanhope  and  Emily  Thankful  : 

Legal  evidence  having  been  furnished  to  me,  that  in  accord- 
ance with  the  Act  of  Assembly,  approved  the  23d  day  of  June, 
one  thousand  eight  hundred  and  eighty-five,  this  certifies  that 
I  am  satisfied  that  there  is  no  legal  impediment  to  you  joining 
yourselves  in  marriage. 

Arthur  Edgeworth,  Clerk. 

To  such  declaration  two  certificates,  an  "  original "  and 
"  duplicate,"  shall  be  appended,  in  the  following  form  : 

We  hereby  certify  that  on  the  loth  day  of  June,  one  thousand 
eight  hundred  and  ,  we  united  ourselves  in  marriage 

at  Point  View,  in  the  County  of  Blair,  having  first  obtained 
from  the  clerk  of  the  Orphans'  Court  of  said  county  a  declara- 
tion that  he  was  satisfied  that  there  was  no  existing  legal 
impediment  to  our  so  doing. 

Clifford  Stanhope. 

Emily  Thankful. 

We,  the  undersigned,  were  present  at  the  solemnization  of 
the  marriage  of  Clifford  Stanhope  and  Emily  Thankful  as  set 
forth  in  the  foregoing  certificate. 

George  White. 

Jubel  Somerset. 

This  certificate  must  be  filed  within  thirty  days  by  the  bride 
and  groom  in  the  office  of  the  clerk  of  the  Orphan's  Court. 

Any  bride  and  groom,  or  any  minister,  magistrate,  or  alder- 
man who  neglects  to  return  the  certificate  to  the  clerk  as  above 


MARRIAGE  IN  THE  UNITED   STATES.  293 

required  shall  forfeit  and  pay  the  sum  of  $50,  and  the  clerk 
for  neglect  or  refusal  to  record  the  same  without  additional 
fee  shall  forfeit  and  pay  the  sum  of  $50. 

A  person  who  solemnizes  a  marriage,  or  a  witness  who 
attests  a  marriage  where  the  parties  have  not  procured  a 
license,  shall  forfeit  and  pay  $100  ;  but  the  marriage  will 
be  valid. 

The  clerk  shall  inquire  of  the  parties  applying  for  a  license, 
either  separately  or  together,  under  oath  or  affirmation,  relative 
to  the  legality  of  the  contemplated  marriage  ;  and  if  there  be 
no  legal  objection  thereto,  then  he  shall  grant  such  license. 
Or  the  parties  may  go,  either  separately  or  together,  before 
any  magistrate,  alderman,  or  justice  of  the  peace  of  the  town- 
ship, ward,  or  county  where  either  resides,  in  the  county 
where  the  license  is  desired,  and  be  inquired  of  touching  the 
legality  of  the  contemplated  marriage,  and  such  inquiries  and 
answers  having  been  subscribed  and  sworn  to  by  the  parties 
before  such  officer,  and  forwarded  to  the  clerk  of  the  Orphans' 
Court,  who,  if  satisfied  that  the  same  is  genuine,  and  that  no 
legal  objection  exists  to  the  contemplated  marriage,  shall  issue 
a  license.  The  clerks  must  furnish  the  officers  proper  blanks 
for  this  purpose,  at  the  cost  of  the  county.  The  fee  for  taking 
such  affidavit  is  fifty  cents.  For  issuing  a  license  contrary  to 
law,  or  making  a  false  return,  the  penalty  is  by  fine  not 
exceeding  $1,000. 

Marriage  of  Children. — Children  and  all  persons  under 
the  age  of  twenty-one  are  not  entitled  to  receive  a  marriage 
certificate,  unless  the  consent  of  the  parents  or  guardians  shall 
be  personally  given  before  said  clerk,  or  certified  in  writing, 
attested  by  two  adult  witnesses.  The  signature  of  the  parent 
or  guardian  shall  be  acknowledged  before  a  notary  public,  or 
other  officer  competent  to  take  acknowledgments,  and  must 
form  part  of  the  record  for  issuing  the  license,  and  for  filing 
which  the  clerk  is  entitled  to  fifty  cents  additional  fee. 

For  issuing  a  license  contrary  to  law,  or  for  making  a  false 
return  to  the  clerk,  the  penalty  is  a  forfeiture  not  exceeding 


294  THE   GEOGRAPHY  OF  MARRIAGE. 

$i,ooo  to  the  use  of  the  party  aggrieved.  It  does  not  necessarily 
follow,  however,  that  the  marriage  of  children  over  fourteen 
are  void  absolutely. 

Forbidden  Marriages  :  Relatives. — If  any  person  shall 
intermarry  within  the  degrees  of  consanguinity  or  affinity 
according  to  the  following  table  (established  by  law),  he  or 
she  shall  on  conviction  be  sentenced  to  pay  a  fine  not  exceed- 
ing $500,  and  to  undergo  an  imprisonment,  by  separate  or 
solitary  confinement  at  labor,  not  exceeding  three  years  ;  and 
all  such  marriages  are  declared  void.     The  table  is  as  follows  : 

DEGREES    OF     CONSANGUINITY. 

A  man  may  not  marry  his    mother. 

"  "        "  "        "     father's  sister 

"         "       "         "       "     mother's  sister. 

"  "        "  "        "     sister. 

"         "       "         "       "     daughter. 

"         "       "         "      the  daughter  of  his  son  or  daughter. 
A  woman  may  not  marry  her  corresponding  relatives. 

DEGREES    OF   AFFINITY. 

A  man  may  not  marry  his    father's  wife. 

"  "        "  "        "     son's  wife. 

"  "        "  "        "     son's  daughter. 

"  "        "  "        "     wife's  daughter. 

"         "       "  "     the  daughter  of  liis  wife's  son  or  daughter. 

A  woman  may  not  marry  her  corresponding  relatives. 

Bigamy. — If  any  person  shall  have  two  wives  or  two  hus- 
bands at  the  same  time,  he  or  she  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  be  sentenced  to  pay  a  fine  not 
exceeding  $1,000,  and  to  undergo  an  imprisonment,  by  separate 
and  solitary  confinement  at  labor,  not  exceeding  two  years  ; 
and  the  second  marriage  shall  be  void  :  Provided^  That  if 
any  husband  or  wife  upon  any  false  rumor,  in  appearance  well 
founded,  of  the  death  of  the  other  (when  such  other  has  been 
absent  for  two  whole  years)  hath  married,  or  shall  marry  again, 
he  or  she  shall  not  be  liable  to  the  penalties  of  fine  and  im- 
prisonment imposed  by  said  statute. 


MARRIAGE   IN  THE  UNITED   STATES.  295 

An  unmarried  person  who  knowingly  marries  the  husband 
or  wife  of  another,  on  conviction  must  pay  $500  fine,  and  be 
imprisoned  not  exceeding  two  years. 

Divorce.— May  be  granted  :  (i)  where  marriage  is  void  by 
reason  of  existing  marriage  ;  (2)  where  parties  are  within  pro- 
hibited degrees  of  consanguinity  or  affinity  ;  for  (3)  natural 
impotence  ;  (4)  adultery  and  cruel  and  barbarous  treatment  ; 
(5)  wilful  desertion  for  two  years,  or  where  either  party  has 
been  convicted  of  felony  and  sentenced  for  a  term  exceeding 
two  years  ;  (6)  where  marriage  has  been  procured  by  force, 
fraud,  or  coercion,  and  has  not  been  confirmed  by  acts  of 
injured  party.  Divorce  from  bed  and  board  may  be  granted 
to  wife  who  has  been  turned  out,  abandoned,  or  cruelly  and 
barbarously  treated  so  as  to  endanger  her  life,  or  where  she 
has  suffered  such  indignities  as  to  render  her  life  intolerable, 
and  force  her  to  withdraw  from  his  house  and  family  ;  and 
where  husband  has  been  guilty  of  adultery.  One  year's 
residence  required. 

RHODE    ISLAND. 

In  Rhode  Island  a  marriage  may  be  stopped  by  any  person 
who  chooses  to  object  thereto  in  writing,  and  hand  it  to  the 
celebrant,  who  is  not  allowed  to  proceed  with  the  ceremony 
until  such  lawful  objection  be  removed,  without  incurring  the 
penalty  of  imprisonment  not  exceeding  six  months,  or  fine  not 
exceeding  $1,000.  All  marriages  where  either  party  is  an  idiot 
or  lunatic  is  absolutely  void. 

How  to  Marry. — The  marriage  ceremony  may  be  per- 
formed by  any  ordained  minister  or  elder  of  any  religious  de- 
nomination domiciled  in  Rhode  Island,  or  any  justice  of  the 
Supreme  Court.  It  seems  that  a  religious  society  within  the 
meaning  of  the  law  must  be  incorporated,  and  sustain  a  minis- 
ter publicly  ordained,  and  must  hold  stated  and  regular  ser- 
vice. Wardens  of  the  town  of  New  Soreham  may  join  persons 
in  marriage  in  that  town.  Quaker  marriages,  or  marriages 
among  persons  professing  the  Jewish  religion,  performed  ac- 


296  THE   GEOGRAPHY  OF  MARRIAGE. 

cording  to  their  customs,  are  valid.  Marriages  must  be  sol- 
emnized in  the  presence  of  at  least  two  witnesses  besides  the 
person  officiating. 

Before  parties  wed  they,  or  one  of  them,  must  sign  and  de- 
liver to  the  town  clerk  of  the  town  or  city  where  such  person 
resides  ;  or,  if  living  in  Providence,  to  the  registrar  of  births 
and  marriages  ;  or,  if  they  are  non-residents,  to  the  town  or 
city  clerk  or  registrar  where  the  marriage  takes  place,  a  certifi- 
cate specifying  the  names,  surnames,  ages,  color,  occupation, 
birthplace  of  each  ;  whether  married  before  ;  whether  the  mar- 
riage intended  is  the  first,  second,  third,  or  other  marriage  ; 
whether  the  condition  of  the  person  is  that  of  a  divorced  per- 
son, or  widow,  or  widower  ;  and  the  names,  occupation,  and 
birthplace  of  each  of  their  parents.  For  failure  to  deliver  the 
same  the  penalty  is  imprisonment  not  exceeding  six  months, 
or  fine  not  exceeding  $1,000.  Such  clerk  or  registrar  shall 
issue  a  certificate  properly  signed,  witnessed,  certified  by  him, 
setting  forth  these  facts,  which  must  be  delivered  to  the  per- 
son performing  the  ceremony.  The  fee  for  the  certificate  is 
twenty-five  cents.  And  no  person  shall  wed  any  to  whom 
such  certificate  has  not  been  issued.  The  celebrant  or  the 
Meeting  of  Friends  must  certify  upon  such  certificate  the  time 
and  place  of  the  marriage,  and  return  all  certificates  on  the 
second  Monday  of  every  month  to  the  clerk  or  registrar  of  the 
town  or  city  where  the  wedding  was  performed.  Whoever 
celebrates  a  marriage  knowing  that  one  of  the  parties  has  a 
husband  or  wife  living,  or  that  such  person  has  not  been  law- 
fully divorced,  or  where  the  marriage  has  been  objected  to  in 
writing  as  above  set  forth,  shall  incur  the  penalty  there  stated. 
Whoever  marries  any  persons  without  following  the  require- 
ments of  the  law  shall  be  fined  not  exceeding  $50. 

Marriage  of  Children. — No  clerk  or  registrar  is  allowed 
to  issue  a  marriage  certificate  to  any  minor  person  under  guar- 
dianship, unless  the  consent  in  writing  of  the  parent  or  guar- 
dian shall  liave  first  been  obtained  ;  and  such  clerk  or  registrar 
shall  have  power  to  administer  an  oath  relative  thereto.     But 


MARRIAGE  IN  THE  UNITED   STATES.  297 

where  the  bride  is  over  eighteen,  and  has  no  parent  or  guar- 
dian in  the  United  States,  the  certificate  may  issue  without 
such  consent. 

Forbidden  Marriages :  Relatives. — No  man  shall  marry 
his  mother,  grandmother,  daughter,  son's  daughter,  daughter's 
daughter,  step-mother,  grandfather's  wife,  son's  wife,  son's  son's 
wife,  daughter's  son's  wife,  wife's  mother,  wife's  grandmother, 
wife's  daughter,  wife's  son's  daughter,  wife's  daughter's  daugh- 
ter, sister,  brother's  daughter,  sister's  daughter,  father's  sister, 
mother's  sister.  No  woman  shall  marry  her  corresponding 
relatives.  Such  marriages  are  void,  and  the  penalty  is  impris- 
onment not  exceeding  twenty  years  nor  less  than  five  years. 
The  issue  of  such  marriages  are  illegitimate.  But  these  pro- 
hibitions are  declared  not  to  extend  to  Jews,  who  may  marry 
within  the  degrees  of  affinity  or  consanguinity  allowed  by  their 
religion. 

Bigamy. — Every  person  having  a  husband  or  wife  living 
who  shall  marry  another  is  guilty  of  bigamy,  unless  the  accused 
can  show  either  that  such  husband  or  wife  has  been  continu- 
ally absent  without  the  State  of  Rhode  Island  for  seven  years 
together,  the-  accused  not  knowing  such  party  to  be  living 
within  that  time  ;  or  that  he  or  she  was  divorced  at  the  time 
of  the  second  marriage  ;  or  that  such  prior  marriage  was  en- 
tered into  when  the  groom  was  under  fourteen,  or  the  bride 
was  under  twelve  years  of  age.  The  penalty  for  bigamy  is 
imprisonment  not  exceeding  five  years  nor  less  than  one  year, 
or  by  fine  not  exceeding  $t,ooo. 

Divorce. — Absolute  divorce  or  separate  maintenance  may 
be  granted  :  (i)  where  marriage  is  void  or  voidable  ;  (2)  where 
party  deemed  civilly  dead  owing  to  conviction  for  crime  (con- 
victed of  murder  or  arson)  ;  (3)  where  a  party  will  be  pre- 
sumed to  be  dead  by  reason  of  absence  or  other  circumstances  ; 
(4)  impotency  ;  (5)  adultery  ;  (6)  extreme  cruelty  ;  (7)  wilful 
desertion  for  five  years  (or  for  a  shorter  period  in  the  discre- 
tion of  the  court)  ;  (8)  continued  drunkenness  ;  (9)  neglect  or 
refusal  of  husband,  being  of  sufficient  ability,  to  provide  for 


298  THE   GEOGRAPHY  OF  MARRIAGE. 

wife  ;  (10)  other  gross  behavior  and  wickedness  repugnant  to 
and  in  violation  of  the  marriage  covenant.  Petitioner  must 
have  been  a  domiciled  inhabitant  one  year. 

SOUTH   CAROLINA. 

In  South  Carolina  all  persons  except  idiots  and  lunatics,  and 
those  related  as  set  forth  below,  or  prohibited  on  account  of 
race,  or  by  reason  of  bigamy,  may  lawfully  contract  matrimony. 

How  to  Marry. — The  statutes  are  silent  on  many  points 
respecting  marriage,  and  prescribe  no  form  or  mode  of  cele- 
brating it.  It  is  regarded  in  law  as  merely  a  civil  contract, 
which  the  parties  may  make  themselves,  with  or  without  the 
presence  of  minister,  priest,  or  magistrate.  The  highest  court 
in  the  State  thus  declares  the  law  :  "  Marriage,  with  us,  so  far 
as  the  law  is  concerned,  has  ever  been  regarded  as  a  mere  civil 
contract.  Our  law  prescribes  no  ceremony.  It  requires  noth- 
ing but  the  agreement  of  the  parties,  with  an  intention  that 
that  agreement  shall /^r  se  constitute  the  marriage.  They  may 
express  the  agreement  by  parole,  they  may  signify  it  by  what- 
ever ceremony  their  whim,  or  their  taste,  or  their  religious 
belief  may  select ;  it  is  the  agreement  itself,  and  not  the  form 
in  which  it  is  couched,  which  constitutes  the  contract.  The 
words  used,  or  the  ceremony  performed,  are  mere  evidences  of 
a  present  intention  and  agreement  of  the  parties." 

Marriage  of  Children. — The  statute  prescribes  no  age  at 
which  children  may  consent  to  marry.  Hence  the  common- 
law  rule  will  be  presumed  to  prevail,  which  fixes  the  age  of 
consent  at  twelve  years  in  females  and  fourteen  in  males.  The 
law,  however,  declares  that  whoever  shall  take  away,  or  cause 
to  be  taken  away,  any  maid  or  woman-child  unmarried,  being 
within  the  age  of  sixteen  years,  or  shall,  against  the  will  or  un- 
knowing of  or  to  the  father  of  any  such  maid  or  woman-child, 
if  the  father  be  in  life,  or  against  the  will  or  unknowing  of  the 
mother  of  any  such  maid  or  woman-child  (having  the  custody 
or  governance  of  such  child  if  the  father  be  dead),  by  secret 
letters,  messengers,  or  otherwise  contract  matrimony  with  any 


MARRIAGE  IN  THE  UNITED   STATES.  299 

such  maid  or  woman-child,  shall,  on  conviction,  suffer  impris- 
onment for  five  years,  or  else  shall  pay  such  fine  as  shall  be 
adjudged  by  the  court.  One  moiety  of  such  fine  shall  be  for 
the  State  and  the  other  moiety  to  the  parties  aggrieved. 

Forbidden  Marriages :  Relatives  ;  Miscegenation. 
— No  man  shall  marry  his  mother,  grandmother,  daughter, 
granddaughter  step-mother,  sister,  grandfather's  wife,  son's 
wife,  grandson's  wife,  wife's  mother,  wife's  grandmother,  wife's 
daughter,  wife's  granddaughter,  brother's  daughter,  sister's 
daughter,  father's  sister,  or  mother's  sister. 

No  woman  shall  marry  her  corresponding  relatives. 

It  shall  be  unlawful  for  any  man  to  intermarry  with  any 
woman  of  either  the  Indian  or  negro  races,  or  any  mulatto 
mestizo,  or  half-breed,  or  for  any  white  woman  to  intermarry 
with  any  person  other  than  a  white  man,  or  for  any  mulatto, 
half-breed,  negro,  Indian,  or  mestizo  to  intermarry  with  a 
white  woman  ;  and  any  such  marriage,  or  attempted  marriage, 
shall  be  utterly  void  and  of  no  effect ;  and  persons  so  marrying 
or  knowingly  officiating  at  such  marriage,  are  guilty  of  a  mis- 
demeanor, and  may  be  fined  not  less  than  $500,  or  imprisoned 
not  less  than  twelve  months,  or  both,  in  the  discretion  of  the 
court. 

Bigamy. — Whoever,  being  married,  and  whose  husband  or 
wife  has  not  remained  continually  for  seven  years  beyond  the 
sea,  or  continually  absented  himself  or  herself  the  one  from 
the  other  for  the  space  of  seven  years  together,  the  one  of 
them  not  knowing  the  other  to  be  living  wirhin  that  time,  or 
who  were  not  married  before  the  age  of  consent,  or  when 
neither  husband  nor  wife  is  under  sentence  of  imprisonment 
for  life,  or  whose  marriage  has  not  been  by  decree  of  a  com- 
petent tribunal  having  jurisdiction  both  of  the  cause  and  the 
parties,  shall  marry  another  person,  the  former  husband  or 
wife  being  alive,  shall,  on  conviction,  be  punished  by  imprison- 
ment in  penitentiary  not  more  than  five  years  nor  less  than 
six  months,  or  by  imprisonment  in  jail  six  months  and  a  fine 
not  less  than  $500.     Such  marriages  shall  be  void. 


300  THE   GEOGRAPHY  OF  MARRIAGE. 

Divorce. — Is  not  sanctioned  in  South  Carolina,  and  will  not 
be  granted  in  any  case  after  the  marriage  has  been  consum- 
mated by  the  parties  living  together  as  husband  and  wife.  It 
has  been  declared  by  judicial  authority,  the  Legislature  never 
exercised  the  power  to  grant  a  divorce,  and  never  delegated 
such  power  to  any  court.  But  if  the  marriage  has  not  been  so 
consummated,  the  Court  of  Common  Pleas  may  declare  the 
contract  void  for  want  of  consent  of  either  of  the  contracting 
parties,  or  for  any  other  cause  going  to  show  that  at  the  time 
the  said  supposed  contract  was  made  it  was  not  a  contract. 

SOUTH    DAKOTA. 

Admitted  into  the  Union  by  Act  of  Congress  approved  the 
22d  of  February,  1889.  Now  formulating  its  State  constitu- 
tion.    For  laws  see  Dakota. 

TENNESSEE. 

Tennessee  has  adopted  the  most  unreasonable  condition  as 
to  the  marriage  contract  to  be  found  within  the  United  States, 
A  few  of  the  States  require  a  nominal  bond  to  be  given  by  the 
groom,  in  the  penalty  in  some  cases  of  $200.  The  amount  of 
the  bond  in  Tennessee  is  ^1,250.  This  would  seem,  in  the 
case  of  the  humbler  class  of  citizens  unable  to  procure  bonds- 
men, to  operate  almost  as  a  denial  of  the  right  to  marry.  Five 
years  of  absence,  where  the  parties  are  not  known  to  be  living, 
dissolves  the  marriage,  in  view  of  a  second  marriage. 

How  to  Marry. — All  regular  ministers  of  the  gospel  of  every 
denomination,  and  Jewish  rabbis,  having  the  care  of  souls,  and 
all  justices  of  the  peace,  judges,  and  chancellors  in  the  State 
may  solemnize  the  rite  of  matrimony.  No  formula  need  be 
observed,  except  that  the  parties  shall  respectively  declare,  in 
the  presence  of  the  minister  or  officer,  that  they  accept  each 
other  as  man  and  wife.  The  bride  and  groom  must  first  pro- 
duce a  license  under  the  hand  of  the  clerk  of  the  county  court 
where  the  bride  resides,  or  where  the  marriage  is  solemnized, 


MARRIAGE  IN  THE  UNITED    STATES.  30I 

directed  to  such  minister  or  officer,  authorizing  the  solemniza- 
tion of  a  marriage  between  them.  Unless  the  clerk  knows 
that  one  of  the  parties  is  incapable,  he  may  issue  a  license, 
first  taking  a  bond  to  the  State,  with  sufficient  surety,  in  the 
sum  of  $1,250,  conditioned  that  there  is  no  lawful  cause  to 
obstruct  the  marriage.  The  celebrant  shall,  at  the  foot  or  on 
the  back  cf  each  license,  affix  a  certificate  in  the  following 
form,  to  be  signed  by  him  : 

"  I  solemnized  the  rite  of  matrimony  between  the  above  (or 
within)  named  parties,  on  the day  of ,  18 — ." 

He  must  fill  out  the  blank  and  return  it  to  the  clerk  of  the 
county  within  six  months.  The  fact  that  the  baptismal  name 
has  been  omitted  from  the  license,  and  a  nickname  used,  will 
not  invalidate  the  marriage  when  duly  consummated.  The 
penalty  for  granting  a  license  to  persons  incapable,  or  joining 
such  persons  in  marriage,  knowingly,  is  a  fine  of  $500. 

Marriage  of  Children. — The  statute  is  silent  as  to  the 
marriage  of  children,  and  fixes  no  age  of  legal  consent.  The 
common-law  rule  would  perhaps  prevail,  in  the  absence  of 
legislation  on  the  subject,  which  fixes  the  age  of  consent  at 
twelve  in  males  and  fourteen  in  females.  Doubtless,  in  view 
of  the  heavy  penalty,  no  license  would  be  granted  to  a  minor 
without  the  written  consent  of  the  parent  or  guardian. 

Forbidden  Marriages  :  Relatives  ;  Miscegenation. — 
Marriage  cannot  be  contracted  with  a  lineal  ancestor  or 
descendant,  nor  the  lineal  ancestor  or  descendant  of  either 
parent,  nor  the  child  of  a  grandparent,  nor  the  lineal  descend- 
ant of  husband  or  wife,  as  the  case  may  be,  nor  the  husband 
or  wife  of  a  parent,  or  lineal  descendant.  The  punishment 
for  such  an  offence  is  imprisonment  not  less  than  five  nor 
more  than  twenty-one  years. 

The  intermarriage  of  white  persons  with  negroes,  mulattoes, 
or  persons  of  mixed  blood  descended  from  a  negro  to  the 
third  generation,  inclusive,  or  their  living  together  as  man  and 
wife  in  Tennessee,  is  prohibited.  The  punishment  is  impris- 
onment not  less  than  one  nor  more  than  five  years.     But  the 


302  THE    GEOGRAPHY  OF  MARRIAGE. 

court  may,  on  recommendation  of  the  jury,  substitute  in  lieu 
of  imprisonment  in  the  penitentiary,  fine  and  imprisonment  in 
the  county  jail. 

Bigamy. — If  any  person,  being  married,  shall  marry  an- 
other, it  is  bigamy,  unless  the  accused  can  show  that  his  or 
her  husband  or  wife  has  continually  remained  beyond  the 
limits  of  the  United  States,  or  absent  from  the  other  without 
the  knowledge  of  the  party  remarrying,  for  the  space  of  five 
years  together,  or  that  the  accused  had  good  reason  to  believe 
such  former  husband  or  wife  to  be  dead.  The  punishment  is 
imprisonment  not  less  than  two  nor  more  than  twenty-one 
years. 

Divorce. — Absolute  divorce  may  be  granted  :  (i)  where 
either  party  at  time  of  marriage  was  impotent,  and  incapable 
of  procreation  ;  (2)  where  either  has  knowingly  married  in 
violation  of  a  previous  marriage  still  subsisting  ;  (3)  adultery  ; 
(4)  wilful  or  malicious  desertion,  or  absence  of  either  for  two 
years  without  reasonable  cause  ;  (5)  conviction  of  crime  ren- 
dering party  infamous  under  laws  of  Tennessee  ;  (6)  conviction 
of  felony,  and  sentence  to  penitentiary  ;  (7)  when  either  party 
has  attempted  the  life  of  the  other  by  poison  or  other  means 
showing  malice  ;  (8)  refusal  of  wife  to  remove  to  Tennessee 
with  husband  without  reasonable  cause,  and  wilfully  absenting 
herself  from  him  for  two  years  ;  (9)  pregnancy  at  time  of  mar- 
riage without  husband^s  knowledge  ;  (10)  habitual  drunken- 
ness, when  habit  was  contracted  after  marriage.  Divorce  from 
bed  and  board,  or  from  bonds  of  matrimony  in  discretion  of 
court,  may  be  granted  for:  (i)  cruel  and  inhuman  treatment 
by  husband  towards  wife,  which  renders  it  unsafe  and  im- 
proper for  her  to  cohabit  with  him,  and  be  under  his  dominion 
and  control  ;  (2)  that  he  has  offered  indignities  to  her  person, 
which  render  her  condition  intolerable,  and  forced  her  to  with- 
draw ;  (3)  that  he  has  abandoned  her,  and  turned  her  out-of- 
doors,  and  refused  and  neglected  to  provide  for  her. 

When  the  marriage  is  absolutely  annulled  the  parties  may 
marry  again  ;  but  a  defendant  who  has  been  guilty  of  adultery 


MARRIAGE  IN  THE  UNITED   STATES.  303 

shall  not  marry  the  person  with  whom  the  crime  was  com- 
iriitted,  during  the  life  of  the  innocent  party.  The  courts 
have  recently  refused  to  recognize  the  marriage  of  a  guilty 
divorced  person,  though  solemnized  in  Alabama.  Two  years' 
residence  required. 

TEXAS. 

Every  female  under  the  age  of  twenty-one  years  who  shall 
marry  in  accordance  with  the  laws  of  Texas  shall,  from  and 
after  the  time  of  such  marriage,  be  deemed  to  be  of  full  age, 
and  shall  have  all  the  rights  and  privileges  to  which  she  would 
have  been  entitled  had  she  been,  at  the  time  of  her  marriage, 
of  full  age. 

Abduction  is  the  false  imprisonment  of  a  woman  with  intent 
to  force  her  into  marriage,  or  for  immoral  purposes.  If  the 
female  is  under  fourteen  it  is  not  material  whether  she  con- 
sents or  not.     (See  Marriage  of  Children.) 

How  to  Marry. — All  regularly  licensed  or  ordained  min- 
isters of  the  gospel,  judges  of  the  district  and  county  courts, 
and  all  justices  of  the  peace  of  the  several  counties  are  author- 
ized to  celebrate  the  rites  of  matrimony  between  all  persons 
legally  authorized  to  marry.  The  person  desirous  of  marry- 
ing shall  apply  to  the  clerk  of  the  county  court,  and  shall 
receive  from  him  a  license  directed  to  all  persons  authorized 
by  law  to  celebrate  the  rites  of  matrimony,  which  shall  be  suf- 
ficient authority  for  any  one  of  such  persons  to  celebrate  such 
marriage.  The  clerk  shall  record  all  licenses  so  issued  by 
him,  and  the  person  solemnizing  the  marriage  must  endorse 
the  same  on  the  license  and  return  it  to  the  clerk  within  sixty 
days,  which  return  shall  also  be  recorded. 

Marriage  of  Children. — The  statute  specifically  declares 
that  males  under  sixteen  and  females  under  fourteen  shall  not 
marry.  No  clerk  shall  issue  a  license  without  the  consent  of 
the  parents  or  guardians  of  the  parties  applying,  unless  such 
parties  shall  be,  in  the  case  of  the  male,  twenty-one,  and  in  the 
female  eighteen. 


304  THE   GEOGRAPHY  OF  MARRIAGE. 

If  a  female  under  fourteen  be  taken,  for  the  purpose  of 
marriage,  from  her  parent,  guardian,  or  other  person  having 
the  legal  charge  of  her,  it  is  abduction,  whether  she  consents 
or  not,  and  although  a  marriage  afterwards  takes  place  between 
the  parties  ;  and  the  offence  is  complete  if  the  female  be  de- 
tained as  long  as  twelve  hours,  though  she  may  afterwards  be 
relieved  from  such  detention,  without  marriage  or  immorality. 
The  punishment  for  abduction  is  by  fine  not  exceeding  $2,000  ; 
but  if  by  reason  of  such  abduction  the  woman  be  forced  into 
marriage,  the  punishment  shall  be  by  confinement  in  peniten- 
tiary not  less  than  two  nor  more  than  five  years  ;  and  if  im- 
morality has  been  practised  the  imprisonment  is  not  less  than 
three  nor  more  than  twenty  years. 

Forbidden  Marriages  :  Relatives;  Miscegenation. — 
No  man  shall  marry  his  mother,  his  father's  sister  or  half-sister, 
his  mother's  sister  or  half-sister,  his  daughter,  the  daughter  of 
his  father,  mother,  brother,  or  sister,  or  of  his  half-brother  or 
sister,  the  daughter  of  his  son  or  daughter,  his  father's  widow, 
his  son's  widow,  his  wife's  daughter,  or  the  daughter  of  his 
wife's  son  or  daughter.  No  woman  shall  marry  her  corre- 
sponding relatives. 

The  punishment  for  such  marriages  is  imprisonment  in  the 
penitentiary  not  less  than  two  nor  more  than  ten  years. 

It  shall  not  be  lawful  for  any  person  of  European  blood  or 
their  descendants  to  intermarry  with  Africans  or  the  descend- 
ants of  Africans  ;  and  such  marriages  shall  be  void.  If  any 
white  person  and  negro  shall  knowingly  intermarry  in  Texas, 
or  elsewhere,  and  thereafter  live  in  Texas,  they  shall  be  im- 
prisoned not  less  than  two  nor  more  than  five  years.  The 
term  "  negro  "  includes  a  person  of  mixed  blood  descended 
from  negro  ancestry  to  the  third  generation  inclusive,  although 
one  ancestor  of  each  generation  may  have  been  a  white  per- 
son. All  persons  not  included  in  the  above  definition  of  negro 
are  deemed  in  law  white  persons. 

Bigamy. — If  any  person  having  a  husband  or  wife  living 
shall  marry  another  it  is  bigamy,  unless  the  accused  can  show 


MARRIAGE   IN  THE  UNITED   STATES.  305 

that  his  or  her  husband  or  wife  shall  have  been  continually 
remaining  out  of  the  State,  or  shall  have  voluntarily  withdrawn 
from  the  other  and  remained  absent  for  five  years,  the  person 
marrying  again  not  knowing  the  other  to  be  living  within  that 
time,  or  that  he  or  she  has  been  legally  divorced  from  the 
bonds  of  matrimony.  The  punishment  is  imprisonment  in  the 
penitentiary  not  exceeding  three  years. 

Divorce — Maybe  granted  husband  or  wife  :  (i)  where  either 
is  guilty  of  excesses,  cruel  treatment,  or  outrages  towards  the 
other  of  such  a  nature  as  to  render  living  together  insupporta- 
ble ;  (2)  conviction  of  felony  after  marriage,  one  year's  imprison- 
ment dating  from  final  judgment  without  pardon,  where  the 
conviction  was  not  upon  the  testimony  of  the  husband  or  wife. 
In  favor  of  husband  (i)  where  wife  is  taken  in  adultery,  or  (2) 
where  she  has  voluntarily  left  husband  for  three  years  with 
intention  of  abandonment.  In  favor  of  wife  (i)  where  hus- 
band has  left  her  for  three  years  with  intention  of  abandon-^ 
ment,  or  (2)  where  he  shall  have  abandoned  her  and  lived  in 
adultery  with  another  woman.  Petitioner  must  be  bona-fide 
resident,  and  must  have  lived  six  months  in  county  where  suit 
is  brought. 

UTAH. 

Forced  by  federal  legislation  from  time  to  time  since  1862, 
and  Congress  having  finally  dissolved  the  religious  corporation 
known  as  the  Mormon  Church,  the  modern  advocate  and 
propagator  of  polygamy,  Utah  has  at  last,  in  1888,  placed 
upon  her  statute-books  vigorous  laws  with  regard  to  the  gov- 
ernment of  the  marriage  relation.  Since  the  Mormon  Church 
has  been  extinguished,  at  least  so  far  as  its  corporate  existence 
is  concerned,  it  is  fair  to  presume  that  these  laws  will  not 
continue  to  remain  a  dead  letter.  They  contain  the  following 
provisions  : 

The  period  of  minority  extends  in  males  to  the  age  of  twenty- 
one,  and  in  females  to  eighteen  ;  but  all  minors  obtain  their 
majority  by    marriage.     Stirring  up  unwarrantable   litigation 


306  THE    GEOGRAPHY  OF  MARRIAGE. 

between  husband  and  wife,  or  seeking  to  bring  about  a 
separation  between  them,  is  made  punishable  by  fine  and 
imprisonment. 

Every  person  who  falsely  personates  another,  and  in  such 
assumed  character  marries  or  pretends  to  marry  or  sustain 
the  marriage  relation  towards  another,  with  or  without  the 
connivance  of  such  other,  is  guilty  of  a  felony.  A  felony  is 
punishable  by  imprisonment  in  the  penitentiary  not  exceeding 
five  years. 

Marriages  solemnized  out  of  Utah,  if  valid  where  solemnized, 
are  declared  to  be  valid  in  Utah. 

Marriage  is  prohibited  and  declared  void  :  (i)  with  an  idiot 
or  lunatic  ;  (2)  when  there  is  a  husband  or  wife  living,  from 
whom  the  person  marrying  has  not  been  divorced  ;  (3)  when  not 
solemnized  by  an  authorized  person,  except  where  consum- 
mated by  the  parties,  or  one  of  them,  in  good  faith  ;  (4)  when  at 
the  time  of  marriage  the  male  is  under  fourteen,  or  the  female 
under  twelve  ;  (5)  between  a  negro  or  a  Mongolian  and  white 
person.  Where  parties  marry  in  good  faith,  with  the  belief 
that  a  former  husband  or  wife  then  living  was  dead,  or  legally 
divorced,  the  issue  born  or  begotten  before  notice  of  the  mis- 
take shall  be  legitimate. 

How  to  Marry. — No  marriage  shall  be  solemnized  with- 
out a  license,  issued  by  the  clerk  of  Probate  Court  of  county 
where  female  resides  ;  but  if  the  female  is  of  full  age,  or  a 
widow,  and  she  applies  in  person  or  in  writing  over  her  signa- 
ture, the  clerk  of  any  Probate  Court  may  issue  it.  AVhen  par- 
ties are  personally  unknown,  clerk  shall  issue  no  license  until 
affidavit  is  made  by  applicant,  showing  there  is  no  lawful  reason 
in  tlie  way  of  such  marriage.  False  swearing  by  an  applicant, 
or  subscribing  witness,  is  perjury.  In  absence  of  clerk,  or 
during  a  vacancy,  the  license  shall  be  issued  by  the  probate 
judge.  Every  clerk,  deputy  clerk,  or  probate  judge,  who  shall 
knowingly  issue  a  license  for  any  prohibited  marriage,  shall  be 
punished  by  confinement  in  penitentiary  not  exceeding  two 
years,  or  fined  not  exceeding  $1,000,  or  both,  and  expelled 


MARRIAGE  IN  THE  UNITED   STATES.  307 

from  office  by  judgment  of  conviction.  If  he  wilfully  issue  a 
license  contrary  to  his  duty,  he  shall  be  fined  not  exceeding 
$r,ooo.  Clerk's  fee  for  license,  $1,  for  recording  same  when 
returned,  $1.25,  which  he  may  demand  when  issued. 

Marriage  shall  be  solemnized  by  the  following  persons  only  : 
ministers  of  the  gospel,  or  priests  of  any  denomination,  in 
regular  communion  with  any  religious  society  ;  probate  judges, 
justices  of  the  peace,  and  judges  of  the  distict  arid  supreme 
courts.  The  celebrant  who  solemnizes  marriage  without  a 
license  shall  be  imprisoned  not  less  than  one  nor  more  than 
twelvemonths,  or  fined  not  more  than$i,ooo,  or  both.  He  shall 
return  the  license  to  the  court  whence  it  issued,  within  thirty 
days,  with  a  certificate  of  the  marriage  over  his  signature, 
giving  date  and  place  of  celebration,  and  names  of  two  or 
more  witnesses  present,  and  for  failure  to  do  so  is  guilty  of  a 
misdemeanor.  A  misdemeanor  is  punishable  by  imprisonment 
not  exceeding  six  months,  or  by  fine  not  less  than  $300,  or  by 
both.'  The  clerk  must  file,  record,  and  index  the  return.  If  a 
celebrant  shall  knowingly,  with  or  without  a  license,  solemnize 
a  marriage  prohibited  by  law,  he  shall  be  imprisoned  not  ex- 
ceeding three  years,  or  fined  not  exceeding  $1,000,  or  both 
fined  and  imprisoned. 

A  person  not  authorized,  who  shall  solemnize  marriage  un- 
der pretense  of  authority,  or  shall  falsely  personate  the 
father,  mother,  or  guardian,  in  obtaining  a  license,  or  forge 
their  name  to  a  consent  to  such  marriage,  shall  be  imprisoned 
not  exceeding  three  years. 

Marriage  of  Children. — Marriage  is  prohibited  between 
a  male  under  fourteen  or  a  female  under  twelve,  and  such 
marriage  is  void.  Where  the  male  is  under  sixteen,  or  the 
female  under  fourteen  and  marries  without  consent  of  parents 
or  guardians,  and  the  marriage  has  not  been  ratified  after  that 
age,  by  cohabitation,  it  may  be  annulled.  If  the  male  is  un- 
der twenty- one,   or  the  female  is  under  eighteen,  no  license 

'  Compare  with  provision  under  the  Act  of  Congress,  relating  generally  to 
the  territories  ;  note  foot  of  page  194. 


308  THE   GEOGRAPHY  OF  MARRIAGE. 

shall  be  issued  without  the  consent  of  parents  or  guardian, 
personally  or  in  writing,  signed  and  attested  by  two  or  more 
witnesses,  and  proved  by  the  oath  of  one  of  them  administered 
by  the  clerk.  For  issuing  a  license  to  such  contrary  to  law, 
or  contrary  to  the  duty  imposed,  or  solemnizing  such  a  mar- 
riage, the  licensing  official  and  celebrant  incur  the  penalties 
above  set  forth. 

Forbidtien  Marriages  :  Relatives ;  Miscegenation. — 
Marriage  between  parents  and  children,  ancestors  and  descend- 
ants of  every  degree,  and  between  brothers  and  sisters  of  the 
half  as  well  as  the  whole  blood,  and  between  uncles  and 
nieces,  or  aunts  and  nephews,  or  between  any  persons  related 
to  each  other  within  and  not  including  the  fourth  degree  of 
consanguinity,  computed  according  to  the  rules  of  civil  law, 
are  incestuous  and  void  from  the  beginning,  whether  the 
relationship  is  legitimate  or  illegitimate.  Punishment  for 
incest  is  imprisonment  in  penitentiary  not  less  than  three  nor 
more  than  fifteen  years.' 

Marriage  between  a  white  person  and  a  negro  or  Mongolian, 
is  void. 

Bigamy. — Every  person  having  a  husband  or  wife  living, 
who  shall  marry  any  other  person,  whether  married  or  single,  in 
a  Territory  of  the  United  States,  or  other  place  over  which  it 
has  exclusive  jurisdiction,  shall  be  adjudged  guilty  of  bigamy  ; 
unless  it  can  be  shown  that  such  former  husband  or  wife  shall 
have  been  absent  five  consecutive  years,  without  being  known 
to  the  accused  to  be  living  within  that  time  [and  belief  that 
such  absentee  is  dead. — Edmunds  law.],  or  that  such  former 
marriage  has  been  dissolved,  annulled,  or  pronounced  void,  by 
decree  of  a  competent  court.  [This  Act  of  Congress,  except 
the  clause  in  brackets,  has  been  in  force  since  July  8,  1862] 

The  Edmunds  law,  in  force  since  March  22,  1882,  re- 
enacted  the  law  of  1862,  adding  that  any  man   who,  simul- 

'  This  penalty  being  prescribed  by  the  Act  of  Congress,  known  as  the  Ed- 
munds-Tucker law,  which  went  into  effect  March  3,  1887,  would  seem  to 
apply  to  all  the  Territories  of  the  United  Stales. 


MARRIAGE  IN  THE    UNITED   STATES.  309 

taneously,  or  on  the  same  day,  marries  one  or  more  than  one 
woman,  is  guilty  of  polygamy.  It  made  legitimate  the  issue  of 
Mormon  marriages  born  before  January  i,  1883,  and  dis- 
franchised polygamists. 

The  Edmunds-Tucker  law,  which  took  effect  March  3, 
1887,  permits  husband  or  wife  of  lawful  marriage  to  testify 
in  prosecutions  for  bigamy  or  polygamy,  and  makes  adultery 
punishable  by  imprisonment  in  penitentiary  not  exceeding 
three  years,  and  dissolves  the  corporation  known  as  the  Mor- 
mon Church,  or  the  Church  of  Jesus  Christ  of  Latter- Day 
Saints,  and  the  General  Assembly  of  the  State  of  Deseret,  thus 
striking  a  blow  at  a  corrupting  fountain,  which  has  been  breed- 
ing moral  pestilence  for  two  generations. 

The  punishment  for  bigamy,  or  polygamy,  under  the  Ed- 
munds law,  is  imprisonment  not  exceeding  five  years,  and 
fine  not  exceeding  $500. 

Divorce. — May  be  granted  to  either  husband  or  wife  for  : 
(i)  impotency  at  time  of  marriage;  (2)  adultery;  (3)  wilful 
desertion  for  more  than  one  year  ;  (4)  wilful  neglect  of  hus- 
band to  provide  for  wife  common  necessaries  of  life  ;  (5) 
habitual  drunkenness  ;  (6)  conviction  of  felony ;  (7)  cruel 
treatment  to  extent  of  causing  plaintiff  great  bodily  injury,  or 
great  mental  distress.  If  it  appears  to  the  court  that  a  com- 
promise might  be  made  between  the  parties,  he  may  defer  the 
decree  of  divorce  to  a  specified  time  not  exceeding  one  year. 
One  year's  residence  is  required. 

VERMONT. 

Children  born  out  of  wedlock,  whose  parents  subsequently 
marry,  if  recognized  thereafter  by  the  father,  shall  be  considered 
legitimate. 

How  to  Marry. — Marriage  may  be  solemnized  by  a  justice 
in  his  county,  or  by  an  ordained  minister  who  resides  in  the 
State,  or  who  labors  statedly  therein  as  minister  or  missionary. 
Marriage  among  Quakers  may  be  solemnized  in  the  manner 
used  in  their  society.     Before  solemnizing  a  marriage  the  min- 


3IO  THE   GEOGRAPHY  OF  MARRIAGE. 

ister  or  magistrate  must  require  of  the  bride  and  groom  a 
certificate,  issued  by  the  town-clerk  of  the  town  where  the 
groom  resides,  or  if  he  is  not  a  resident,  then  of  the  town 
where  the  bride  resides,  or  if  both  are  non-residents,  then  of 
the  town  where  the  wedding  is  to  be  ;  and  this  certificate  ren- 
ders immunity  from  further  responsibility.  The  marriage 
certificate  to  be  issued  by  the  clerk,  for  which  he  is  entitled  to 
a  fee  of  fifty  cents,  shall  be  in  the  form  prescribed  by  the 
statute,  the  clerk  being  required  to  fill  out  the  blanks  as  far  as 
practicable,  and  when  it  is  returned  by  celebrant  he  shall 
complete  the  record. 

If  a  person  making  application  for  a  certificate  makes  any 
material  misrepresentation  in  filling  the  blanks  therein,  such 
person  may  be  fined  not  more  than  $ioo. 

For  cases  when  clerk  is  forbidden  to  issue  certificate,  see 
Marriage  of  Children.  The  celebrant  shall  fill  all  remaining 
blanks,  add  the  date  of  the  marriage  and  official  signature,  and 
return  the  certificate  to  the  office  whence  it  issued  within  ten 
days,  or  be  subject  to  a  fine  of  not  less  than  $io  ;  and  for  per- 
forming a  marriage,  without  obtaining  a  license,  he  will  be 
subject  to  the  same  penalty. 

If  a  person  undertakes  to  join  others  in  marriage,  knowing 
he  has  no  legal  right  to  do  so,  he  shall  be  imprisoned  not  more 
than  six  months,  or  fined  not  less  than  $ioo.  But  no  marriage 
solemnized  before  a  person  professing  or  pretending  to  be  a 
minister  or  magistrate  shall  be  void,  if  the  bride  and  groom  or 
one  of  them  acted  in  good  faith. 

Marriage  of  Children. — The  town-clerk  shall  not  issue  a 
marriage  certificate  to  a  minor  without  the  consent  in  writing 
of  the  parent  or  guardian,  if  there  is  one  competent  to  act  ; 
nor  when  either  the  proposed  bride  or  groom  is  insane,  or  un- 
der guardianship,  without  the  written  consent  of  the  guardian 
of  such  party  ;  nor  to  a  town  ])auper,  without  written  consent 
of  the  selectmen  of  the  town  liable  for  his  support. 

Forbidden  Marriages  :  Relatives.  —  No  man  shall 
marry  his  mother,  grandmother,  stejj-mother,  daughter,  grand- 


MARRIAGE  IN  THE  UNITED   STATES.  31I 

daughter,  grandfather's  wife,  son's  wife,  grandson's  wife,  wife's 
mother,  wife's  grandmother,  wife's  daughter,  wife's  grand- 
daughter, sister,  brother's  daughter,  sister's  daughter,  father's 
sister,  or  mother's  sister.  No  woman  shall  marry  her  corre- 
sponding relatives.  If  the  relationship  is  founded  on  marriage, 
the  prohibition  continues  after  the  dissolution  of  the  marriage 
by  death  or  divorce,  unless  it  has  been  declared  void  for  a 
cause  which  rendered  it  originally  unlawful.  Such  marriages 
are  void  without  decree,  and  the  penalty  therefor  is  imprison- 
ment not  exceeding  five  years,  and  fine  not  exceeding  $1,000, 
or  either  of  said  punishments. 

Bigamy. — If  a  person,  having  a  husband  or  wife  living, 
marries  another,  it  is  bigamy,  unless  the  accused  can  show  that 
his  or  her  husband  or  wife  has  been  continually  beyond  sea 
or  out  of  the  State  for  seven  years  together,  the  accused  not 
knowing  such  person  to  be  living  within  that  time  ;  or  that  such 
former  marriage  has  been  avoided  by  divorce  or  sentence  of 
nullity,  or  was  contracted  under  the  age  of  consent  and  not 
afterwards  assented  to.  The  punishment  is  imprisonment  not 
exceeding  five  years.  A  person  sentenced  to  confinement  at 
hard  labor  during  life,  in  the  State  prison,  shall  be  considered 
as  dead,  so  far  as  relates  to  his  marriage. 

Divorce. — May  be  granted  for  :  (i)  adultery  ;  (2)  sentence 
to  State  prison  for  life,  or  for  three  years  or  more  ;  (3)  intol- 
erable severity  ;  (4)  wilful  desertion  for  three  consecutive  years, 
or  when  party  has  been  absent  and  not  heard  from  for  seven 
years.  Wife  also  is  entitled  to  divorce  when  husband  without 
cause  grossly  or  wantonly  and  cruelly  refuses  and  neglects  to 
maintain  her,  being  of  sufficient  ability  to  do  so,  whether  his 
means  are  derived  from  the  income  of  property,  personal 
labor,  or  any  other  source.  No  divorce  granted  to  parties 
who  never  lived  as  husband  and  wife  in  the  State  ;  nor 
where  cause  arose  out  of  State,  unless  parties  previously 
lived  together  in  the  State,  or  one  of  them  lived  there  at 
the  time  when  cause  arose.  Two  years'  residence  required 
when    cause     arose    out    of     State  ;     in    other    cases,    one 


312  THE   GEOGRAPHY   OF  MARRIAGE. 

year.  The  State's  attorney,  in  the  respective  counties,  must 
appear  in  behalf  of  the  State  in  all  divorce  cases.  Guilty 
party  cannot  marry  any  person  other  than  the  complainant 
until  the  expiration  of  three  years  after  divorce,  unless  within 
that  time  innocent  party  dies.  Violation  of  the  prohibition,  or 
living  in  the  State  in  violation  thereof,  is  punishable  by  im- 
prisonment not  less  than  one  nor  more  than  five  years. 

VIRGINIA. 

The  code  of  Virginia,  which  went  into  effect  in  May,  t888, 
seems  to  have  modified  the  rule  in  cases  where  children  of  the 
age  of  twelve  and  under  fourteen  marry  without  consent  of 
parents,  authorizing  a  receiver  of  her  property.  The  law  now, 
in  all  cases  where  the  bride  is  a  minor  at  the  time  of  her  mar- 
riage, authorizes  a  receiver  of  her  separate  estate  during 
minority.  The  bond  required  of  a  celebrant  has  been  reduced 
from  $1,500  to  $500.  Children  born  out  of  wedlock,  whose 
parents  subsequently  marry,  if  recognized  by  the  father  before 
or  after  marriage,  shall  be  deemed  legitimate.  The  issue  of 
marriages  deemed  null  and  void,  or  dissolved  by  divorce,  are 
legitimate. 

A  person  who  takes  away  or  detains,  against  her  will,  any 
female,  with  intent  to  marry  her,  or  cause  her  to  be  married, 
may  be  imprisoned  not  less  than  three  nor  more  than  ten  years  ; 
but  the  force  of  this  provision  is  weakened  by  providing  that, 
if  the  parties  subsequently  marry,  the  fact  of  the  marriage  may 
be  pleaded  in  bar  of  a  conviction. 

How  to  Marry. — Every  marriage  shall  be  under  license, 
which  must  be  issued  by  the  clerk  of  the  court  of  the  county 
or  corporation  where  the  bride  usually  resides  ;  or,  if  the  office 
of  clerk  be  vacant,  by  the  judge  of  the  county  court  of  such 
county,  or  the  mayor  of  such  corporation,  who  shall  make 
return  thereof  to  the  clerk  as  soon  as  there  be  one  ;  but  if  the 
bride  lives  within  the  limits  of  a  city  or  town  having  a  corpora- 
tion or  hustings  court,  the  clerk  of  such  court  shall  issue  the 
license.     At  the  time  of  issuing  it  the  clerk  must  require  from 


MARRIAGE  IN  THE  UNITED    STATES.  313 

the  party  a  certificate  setting  forth,  as  near  as  may  be,  the  date 
and  place  of  the  proposed  marriage,  full  names  of  bride  and 
groom,  their  ages,  and  whether  single  or  widowed,  place  of 
birth,  residence,  names  of  respective  parents,  and  occupation 
of  groom.  Every  license  shall  be  registered  in  the  "  Register 
of  Marriages." 

Marriage  may  be  celebrated  by  such  ministers  as  shall  pro- 
duce proof  before  the  court  of  any  county  or  corporation  that 
he  is  in  regular  communion  with  his  religious  society,  and  give 
bond  in  penalty  of  $500,  whereupon  the  court  may  make  an 
order  authorizing  such  minister  to  celebrate  marriages.  The 
court,  if  it  deems  it  expedient,  may  also  authorize  one  or  more 
persons  to  celebrate  marriage  within  such  county,  or  a  par- 
ticular district  thereof,  upon  giving  such  bond  as  is  required 
of  an  ordained  minister.  Marriages  between  persons  belong- 
ing to  any  religious  society  which  has  no  ordained  minister, 
may  be  solemnized  by  the  persons,  and  in  the  manner  pre- 
scribed by  and  practised  in  such  society. 

No  marriage  solemnized  by  a  person  professing  or  pretend- 
ing to  be  authorized  to  solemnize  the  same,  shall  be  void,  if 
the  bride  and  groom,  or  one  of  them,  acted  in  good  faith,  if 
the  marriage  is  in  other  respects  lawful.  Every  minister,  or 
clerk  of  a  religious  meeting,  or  other  person  solemnizing  mar- 
riage, must  make  a  record  of  it,  and  state  whether  the  parties 
are  white  or  colored,  and  must,  within  two  months,  return  a 
copy  thereof  signed  by  him  to  the  clerk  who  issued  the  license. 
For  failure  to  do  so  the  party  shall  forfeit  his  bond.  The 
clerk  shall  file  such  return,  and  record  a  full  abstract  thereof  in 
his  register,  set  out  in  tabular  form,  and  indexed.  Residents 
marrying  out  of  the  State  must  send  an  affidavit  to  the  clerk 
of  the  county  court  or  corporation  where  the  husband  resides  ; 
or,  if  he  is  a  non-resident,  then  where  the  wife  resides,  an 
abstract  of  which  must  in  like  manner  be  recorded.  A  clerk, 
minister,  or  other  person  who  knowingly  makes  a  false  record 
shall  be  fined  not  less  than  $100,  nor  more  than  $500.  Any 
person  making  a  false  statement,  or  giving  false  information, 


SH  THE    GEOGRAPHY   OF  MARRIAGE. 

shall  be  fined  not  less  than  $50,  nor  more  than  ^100.  For 
issuing  a  license  contrary  to  law,  or  performing  marriage  with- 
out a  license,  the  penalty  is  imprisonment  not  more  than  one 
year,  and  fine  not  exceeding  $500. 

Marriage  of  Children. — The  age  of  consent  is  fourteen 
in  males  and  twelve  in  females.  If  the  bride  or  groom  is 
under  twenty-one,  and  has  not  been  previously  married,  the 
consent  of  the  father  or  guardian,  or,  if  there  be  none,  of  the 
mother,  shall  be  given  to  the  clerk  personally,  or  in  a  writing  ; 
if  in  writing  it  must  be  subscribed  by  a  witness,  who  shall 
make  oath  that  the  same  was  signed  or  acknowledged  in  his 
presence.  If  the  bride  is  a  minor  at  the  time  of  her  marriage 
her  separate  estate  may  be  committed  to  a  receiver,  who  shall 
pay  her  the  income  only  to  her  separate  use,  until  she  attains 
her  majority. 

Forbidden  Marriages:  Relatives;  Miscegenation. — 
No  man  shall  marry  his  mother,  grandmother,  step-mother, 
sister,  daughter,  granddaughter,  half-sister,  aunt,  son's  widow, 
wife's  daughter,  or  her  granddaughter  or  step-daughter,  broth- 
er's daughter,  or  sister's  daughter. 

No  woman  shall  marry  her  corresponding  relatives. 

If  the  relationship  in  any  case  is  founded  on  marriage,  the 
prohibition  continues  after  the  marriage  is  dissolved  by  death 
or  divorce,  unless  the  divorce  be  for  causes  which  rendered  the 
marriage  originally  unlawful  or  void.  The  penalty  for  such 
unlawful  marriages  is  imprisonment  not  more  than  six  months, 
or  fine  not  exceeding  $500,  in  the  discretion  of  the  jury. 

Marriages  which  have  been  solemnized  with  a  brother's 
widow,  or  the  widow  of  a  brother's  or  sister's  son,  or  an  uncle's 
widow  are,  however,  declared  valid. 

A  white  person  who  shall  intermarry  with  a  colored  person, 
or  a  colored  person  who  shall  intermarry  with  a  white  person, 
shall  be  confined  in  penitentiary  not  less  than  two  nor  more 
than  five  years.  Whoever  performs  the  ceremony  shall  forfeit 
$200,  informer  to  have  one  half.  Every  person  having  one 
fourth  or  more  negro  blood  shall  be  deemed  a  colored  person. 


MARRIAGE  IN  THE  UNITED   STATES.  315 

Bigamy. — A  person,  being  married,  who  marries  another, 
in  or  out  of  the  State,  is  guilty  of  bigamy,  unless  the  accused 
can  show  that  his  or  her  former  husband  or  wife  has  been 
continually  absent  seven  years  and  hot  known  to  the  accused 
to  be  living  within  that  time,  or  that  he  or  she  has  been 
divorced,  or  that  such  former  marriage  has  been  declared  void 
by  a  competent  court.  The  penalty  for  bigamy  is  imprison- 
ment not  less  than  three  nor  more  than  eight  years. 

Divorce. — May  be  decreed  :  (i)  where  parties  are  within 
prohibited  degrees  of  consanguinity  or  affinity  ;  (2)  for  adul- 
tery ;  (3)  natural  or  incurable  impotency  existing  at  time  of 
marriage  ;  (4)  where  either  was  insane  at  time  of  marriage  ; 

(5)  where  either  is  sentenced  to  confinement  in  penitentiary  ; 

(6)  where  either  was,  prior  to  marriage,  without  knowledge  of 
the  other  convicted  of  an  infamous  offense  ;  (7)  where  either 
charged  with  an  offense  punishable  with  death  or  confinement 
in  penitentiary  has  been  indicted,  is  a  fugitive  from  justice, 
and  has  been  absent  for  two  years  ;  (8)  wilful  abandonment 
for  five  years  ;  (9)  where,  at  time  of  marriage,  wife  was  preg- 
nant by  another  without  knowledge  of  husband,  or  had  been  a 
prostitute  without  his  knowledge.  No  divorce  will  be  granted 
where  parties  cohabit  after  knowledge  of  such  conviction  of 
infamous  offense,  or  of  the  fact  of  such  pregnancy  or  prostitu- 
tion. Divorce  from  bed  and  board  may  be  decreed  for  cruelty, 
reasonable  apprehension  of  bodily  hurt,  abandonment,  or 
desertion. 

WASHINGTON. 

By  Act  of  Congress,  approved  on  the  22d  of  February,  1889, 
Washington  Territory  was  admitted  into  the  Federal  Union. 
The  constitution  for  this  new  commonwealth  is  now  being 
perfected.  The  law  of  the  Territory,  which  it  is  fair  to  presume 
will  be  the  law  of  the  State,  is  as  follows  : 

WASHINGTON   TERRITORY. 
Marriage  is  declared  to  be  a  civil  contract,  which  may  be 
entered  into  by  males  of  the  age  of  twenty-one,  and  females  of 


3l6  THE   GEOGRAPHY  OF  MARRIAGE. 

the  age  of  eighteen,  not  nearer  of  kin  than  second  cousins, 
who  are  otherwise  capable.  But  no  marriage,  save  those  of 
relatives,  is  void,  but  in  case  of  want  of  legal  age,  sufficient 
understanding,  force  or  fraud,  the  party  laboring  under  the 
disability  only,  is  allowed  to  bring  suit  to  annul  it.  Children 
born  out  of  wedlock  become  legitimate  by  the  subsequent 
marriage  of  their  parents. 

How  to  Marry. — Before  any  persons  can  wed,  they  shall 
procure  a  license  from  a  county  auditor,  authorizing  any  per- 
son, or  religious  organization  or  congregation,  to  join  the 
persons  therein  named  as  husband  and  wife.  Before  the 
license  is  issued  the  applicant  shall  file  with  the  auditor  an 
affidavit  of  some  credible  person,  other  than  the  parties  seeking 
the  license,  showing  the  facts  as  to  the  age  of  the  parties, 
which  shall  be  sufficient  authority,  so  far  as  the  facts  therein 
stated  are  concerned,  for  issuing  the  license,  and  pay  %\  for 
recording  the  certificate.  The  auditor  must,  before  issuing 
the  license,  enter  in  his  register  a  memorandum  of  the  names 
of  the  parties,  consent  of  parents  or  guardians,  if  any,  name  of 
affiant,  and  substance  of  the  affidavit  and  date  of  issue. 

Marriage  may  be  solemnized  according  to  the  ritual  or  cere- 
monies of  any  religious  denomination,  or  by  any  minister  or 
priest  of  any  church  or  religious  denomination,  in  the  Terri- 
tory, and  by  any  justice  or  judge  of  the  district  or  probate 
court  anywhere  in  the  Territory,  and  by  any  justice  of  the 
peace  in  his  county.  No  particular  form  is  necessary,  except 
that  bride  and  groom  shall  assent  or  declare  in  presence  of 
the  minister  or  magistrate,  and  of  at  least  two  attending  wit- 
nesses, that  they  take  each  other  as  husband  and  wife.  The 
person  solemnizing  the  marriage,  or  recording  the  same  at  a 
religious  meeting,  sliall  give  to  each  of  the  ])arties,  if  required, 
a  certificate  thereof,  setting  out  date,  names,  and  also  names  of 
at  least  two  witnesses,  and,  within  three  months,  deliver  to  the 
judge  of  the  Probate  Court  of  the  county  where  the  wedding 
took  place  a  certificate,  in  the  form  prescribed  by  statute. 
The  judge  of  the  Probate  Court  shall  fill  and  record  the  same  ; 


MARRIAGE  IN  THE  UNITED   STATES.  317 

and  for  failure  to  deliver  such  certificate,  the  party  shall  be 
fined  not  less  than  $25  nor  more  than  $300.  Any  auditor 
who  issues  a  license  contrary  to  law,  and  any  person  who 
shall  undertake  to  join  persons  in  marriage  without  authority, 
or  contrary  to  law,  may  be  fined  not  more  than  $500  nor  less 
than  $roo.  But  a  marriage  solemnized  by  a  person  pretend- 
ing or  professing  to  be  a  priest  or  minister,  or  to  have  authority, 
is  not  void,  if  the  bride  and  groom  acted  in  good  faith. 

Marriage  of  Children. — If  the  groom  is  under  twenty- 
one,  or  if  the  bride  is  under  eighteen,  no  license  shall  be  issued 
without  the  written  consent  of  the  father,  mother,  or  other 
guardian,  and  the  consent,  with  other  particulars,  must  be 
entered  by  the  auditor.  But  if  children  marry,  the  marriage  is 
good,  until  suit  is  brought  to  set  it  aside,  and  this  can  only  be 
done  by  the  person  under  age. 

Forbidden  Marriages  :  Relatives. — Marriage  is  pro- 
hibited where  the  parties  thereto  are  nearer  of  kin  than  second 
cousins,  whether  of  the  whole  or  half  blood,  computing  by  the 
rules  of  the  civil  law.  It  shall  be  unlawful  for  any  man  to 
marry  his  father's  sister,  mother's  sister,  father's  widow,  wife's 
mother,  daughter,  wife's  daughter,  son's  widow,  sister,  son's 
daughter,  daughter's  daughter,  son's  son's  widow,  daughter's 
son's  widow,  brother's  daughter,  or  sister's  daughter  ;  or  for  a 
woman  to  marry  her  corresponding  relatives.  The  punishment 
for  living  together  as  man  and  wife  by  such  relatives  is  impris- 
onment not  more  than  ten,  nor  less  than  one  year.  Any 
auditor  who  issues  a  marriage  license  to  such  relatives  may  be 
fined  not  more  than  $500  nor  less  than  $100. 

Bigamy. — If  any  person  having  a  former  husband  or  wife 
living  shall  marry  another,  it  is  bigamy,  unless  the  accused  can 
show  that  his  or  her  husband  or  wife  has  continually  remained 
beyond  seas,  or  has  voluntarily  withdrawn  and  remained  absent 
five  years,  the  accused  not  knowing  such  person  to  be  living 
within  that  time  ;  or  that  the  accused  has  good  reason  to 
believe  such  husband  or  wife  to  be  dead  ;  or  that  the  prior 
marriage  has  been  legally  dissolved  by  divorce.     The  punish- 


3l8  THE   GEOGRAPHY  OF  MARRIAGE. 

ment  is  imprisonment  not  more  than  five  years,  or  fine  not 
exceeding  $500  and  imprisonment  in  jail  not  more  than  a 
year.  An  unmarried  person  who  marries  the  husband  or  wife 
of  another  is  subject  to  imprisonment  not  exceeding  three 
years,  or  fine  not  more  than  $300,  or  imprisonment  in  jail  not 
exceeding  one  year. 

Divorce. — May  be  granted  :  (i)  where  consent  to  marriage 
was  contained  by  fraud  or  duress,  and  there  has  been  no  sub- 
sequent voluntary  cohabitation  ;  (2)  adultery,  on  application 
within  one  year  after  knowledge  thereof  ;  (3)  impotency ;  (4) 
abandonment  one  year  ;  (5)  cruel  treatment  or  personal  in- 
dignities, rendering  life  burdensome  ;  (6)  habitual  drunken- 
ness of  either,  or  refusal  of  husband  to  make  suitable  provision 
for  family  ;  (7)  imprisonment  in  penitentiary,  on  application 
during  term  ;  (8)  any  cause  deemed  by  the  court  sufficient, 
when  satisfied  that  the  parties  can  no  longer  live  together.  In 
case  of  incurable  chronic  mania  or  dementia  for  ten  years  or 
more,  court  may  grant  divorce  in  its  discretion, 

WEST    VIRGINIA. 

Ministers  in  West  Virginia  must  be  licensed  to  celebrate 
marriages,  and  must  give  bonds  to  the  county  clerk  in  the 
penalty  of  $1,500.  Girls,  over  twelve  and  under  fourteen, 
who  marry  without  parents'  consent,  may  have  a  receiver  of 
their  property  appointed.  Children  born  out  of  wedlock, 
whose  parents  subsequently  marry,  if  recognized  by  the  father 
before  or  after  the  marriage,  shall  be  deemed  legitimate. 
The  issue  of  marriages  deemed  null  and  void,  or  dissolved 
by  divorce,  are  nevertheless  legitimate.  If  a  person  takes  away 
or  detains  against  her  will  any  female  with  intent  to  marry  her, 
or  cause  her  to  be  married,  he  shall  be  imprisoned  not  less  than 
three  nor  more  than  ten  years. 

How  to  Marry. — Every  marriage  shall  be  under  license, 
which  must  be  issued  by  the  county  clerk  of  the  county  where 
the  bride  usually  resides,  and  sliall  be  recorded  in  the  register 


MARRIAGE  IN  THE  UNITED   STATES.  319 

of  marriages.  The  clerk  must  ascertain  and  record  the  full 
names  of  the  bride  and  groom,  their  respective  ages,  places  of 
birth  and  residence.  The  license  shall  be  in  the  form  pre- 
scribed by  the  statute. 

Marriages  must  be  celebrated  by  a  minister  of  the  gospel  in 
regular  communion  with  his  church.  He  must  produce  proof 
that  he  is  duly  licensed  as  such,  and  in  communion  with  his 
church,  before  the  circuit  or  county  court  of  any  county,  or  to 
the  clerk  of  the  county  court,  when  neither  of  such  courts  are 
in  session,  and  give  bond  in  the  penalty  of  $1,500,  and  the 
court  or  clerk  shall  then  make  an  order  authorizing  him  to 
celebrate  the  rites  of  marriage  in  all  the  counties  of  the  State. 
No  other  person  is  authorized  to  officiate.  But  marriage  be- 
tween persons  belonging  to  any  religious  society  which  has  no 
licensed  minister  may  be  solemnized  in  the  manner  prescribed 
by  the  practice  of  such  society. 

No  marriage  solemnized  by  a  person  professing  or  pretend- 
ing to  be  authorized  to  solemnize  the  same  shall  be  void,  if  the 
bride  and  groom  or  one  of  them  acted  in  good  faith,  if  the 
marrjage  is  in  other  respects  lawful.  The  groom  must  pay  at 
least  %\  as  a  marriage  fee.  The  celebrant  must  within  sixty 
days  return  the  license  to  the  office  whence  it  issued,  with  an 
endorsement  thereon  of  the  fact,  time,  and  place  of  the  mar- 
riage, which  must  be  filed,  indexed,  and  recorded  within 
twenty  days  thereafter.  If  the  minister  fails  to  do  so,  he  shall 
forfeit  his  bond.  Residents  marrying  out  of  the  State  must 
send  an  affidavit  to  the  county  clerk  of  the  county  where  the 
husband  resides,  or  if  he  is  a  non-resident,  then  where  the 
wife  resides,  an  abstract  of  which  must  in  like  manner  be 
recorded.  A  clerk  who  knowingly  issues  a  license  contrary  to 
law,  shall  be  imprisoned  not  more  than  one  year,  or  fined  not 
exceeding  $500,  or  both  ;  and  a  minister  performing  the  cere- 
mony without  license  or  authority,  shall  be  subject  to  the 
same   penalty. 

Marriage  of  Children. — If  the  bride  or  groom  is  under 
twenty-one,  and  has  not  been  previously  married,  the  consent 


320  THE   GEOGRAPHY  OF  MARRIAGE. 

of  the  father  or  guardian,  or,  if  there  be  none,  of  the  mother, 
shall  be  given  personally  to  the  county  clerk,  or  in  writing, 
subscribed  by  a  witness  who  shall  make  oath  that  the  same 
was  signed  or  acknowledged  in  his  presence.  If  the  bride  is 
of  the  age  of  twelve  and  under  fourteen,  and  shall  marry  with- 
out such  consent,  her  estate  may  be  committed  by  the  county 
court  on  petition  of  her  next  friend  to  a  receiver,  who  shall 
pay  her  the  income  only  until  she  arrives  at  the  age  of  twenty- 
one,  and  thereafter  it  may  be  delivered  to  her  as  her  sole  and 
separate  property. 

Forbidden  Marriages :  Relatives ;  Miscegenation. — 
No  man  shall  marry  his  mother,  grandmother,  step-mother, 
sister,  daughter,  granddaughter,  half-sister,  aunt,  uncle's  wife, 
son's  wife,  wife's  daughter  or  her  granddaughter  or  step- 
daughter, brother's  daughter,  sister's  daughter,  or  wife  of  his 
brother's  or  sister's  son. 

No  woman  shall  marry  her  corresponding  relatives.  If  the 
relationship  in  any  case  is  founded  on  marriage,  the  prohibi- 
tion continues  after  the  marriage  is  dissolved  by  death  or 
divorce,  unless  the  divorce  be  for  cause  which  rendered  the 
marriage  originally  unlawful  or  void.  The  penalty  for  such 
unlawful  marriages  is  imprisonment  not  exceeding  six  months, 
or  fine  not  exceeding  $500,  or  both.  Marriage  with  a  brother's 
widow  is  declared  lawful. 

Any  white  person  who  shall  intermarry  with  a  negro  shall  be 
imprisoned  not  more  than  a  year,  and  fined  not  exceeding 
$ioo.  And  whoever  performs  the  ceremony  shall  be  fined  not 
exceeding  $200. 

Bigamy. — A  person  being  married  who  marries  another,  in 
or  out  of  the  State,  is  guilty  of  bigamy,  unless  the  accused  can 
show  that  his  or  her  former  wife  or  husband  has  been  continu- 
ally absent  seven  years,  and  not  known  by  the  accused  to  be 
living  within  that  time  ;  or  that  he  or  she  has  been  divorced, 
or  that  such  former  marriage  has  been  declared  void  by  a 
competent  court.  The  penalty  for  bigamy  is  imprisonment 
not  less  than  one  nor  more  than  five  years. 


MARRIAGE  IN  THE  UNITED    STATES.  32 1 

Divorce. — Absolute  divorce  may  be  decreed  for  :  (i)  adul- 
tery ;  (2)  natural  or  incurable  impotency  existing  at  time  of 
marriage  ;  (3)  sentence  to  confinement  in  penitentiary  ;  (4) 
where  either  without  the  knowledge  of  the  other  has  been  con- 
victed of  an  infamous  offense  prior  to  the  marriage,  and  did* 
not  cohabit  after  such  knowledge  ;  (5)  wilful  desertion  or 
abandonment  for  three  years  ;  (6)  where  wife  was  pregnant  at 
time  of  marriage  by  another  without  husband's  knowledge,  or 
had  been  notoriously  a  prostitute,  if  they  have  not  cohabited 
after  such  knowledge  ;  (7)  where  husband  without  the  wife's 
knowledge  had  been,  prior  to  the  marriage,  notoriously  a 
licentious  person,  and  parties  did  not  cohabit  after  such 
knowledge.  Divorce  from  bed  and  board  may  be  decreed 
for  cruel  and  inhuman  treatment,  reasonable  apprehension  of 
bodily  hurt,  abandonment,  desertion,  or  where  either  after 
marriage  becomes  a  habitual  drunkard.  After  three  years,  if 
there  has  been  no  reconciliation,  court  may  make  divorce 
absolute.     One  year's  residence  required. 

WISCONSIN, 

Sentence  of  imprisonment  for  life  dissolves  a  marriage 
absolutely  without  decree,  and  no  pardon  will  restore  the  con- 
jugal relation.  No  insane  person  or  idiot  is  capable  of  con- 
tracting marriage,  but  if  such  person  marry  one  who  is  able  to 
contract,  and  the  latter  knew  of  the  mental  infirmity,  the  person 
capable  of  marriage  cannot  have  it  dissolved. 

Children  born  out  of  wedlock,  whose  parents  subsequently 
marry,  and  are  recognized  by  the  father  as  his  children,  there- 
by become  legitimate. 

How  to  Marry. — Marriage  may  be  solemnized  by  any 
justice  of  the  peace,  or  court  commissioner  in  the  county  in 
which  he  is  elected  or  appointed,  and  throughout  the  State  by 
any  judge  of  a  court  of  record,  and  by  any  ordained  minister 
or  priest  in  regular  communion  with  any  religious  society,  and 
who  continues  to  be  such  ;  but  before  ministers  or  priests  are 
authorized  to  celebrate  marriage  they  must  file  a  copy  of  their 


322  THE    GEOGRAPHY  OF  MARRIAGE. 

credentials  of  ordination,  or  other  proof  of  such  official  char- 
acter, with  the  clerk  of  the  Circuit  Court  of  some  county,  who 
■shall  record  the  same  and  give  a  certificate  thereof,  and  the 
place  of  record  of  such  credentials  shall  be  endorsed  upon 
each  marriage  certificate  granted  by  minister  or  priest,  and 
recorded  with  the  same.  Before  performing  the  ceremony  the 
celebrant  shall  examine  at  least  one  of  the  parties  on  oath  as 
to  the  legality  of  the  intended  marriage,  and  shall  not  solem- 
nize it  in  any  case  unless  he  is  satisfied  from  such  examination 
that  there  is  no  legal  impediment  thereto.  No  particular  form 
is  required,  except  that  the  parties  shall  solemnly  declare,  in 
the  preseiice  of  the  celebrant  and  attending  witnesses  that 
they  take  each  other  as  husband  and  wife.  There  shall  be  at 
least  two  witnesses  present  besides  the  celebrant.  All  Quaker 
marriages,  performed  in  accordance  with  their  customs,  shall 
be  valid. 

The  celebrant  shall  at  once  make  a  record  of  the  marriage 
in  a  book  containing,  as  far  as  can  be  ascertained,  full  name, 
occupation,  birthplace  and  residence  of  husband,  full  name  of 
wife  previous  to  marriage,  names  of  parents  of  bride  and 
groom,  their  color,  time  and  place  where  ceremony  was  per- 
formed, and  residence  of  celebrant,  and  return  a  certificate 
thereof  within  thirty  days,  duly  signed  and  dated,  to  the  regis- 
ter of  deeds  of  the  county  where  same  took  place  ;  and  for 
failure  to  do  so  shall  forfeit  not  less  than  $25  nor  more  than 
$100,  if  suit  is  brought  before  same  is  delivered.  The  regis- 
ter must  file  said  certificate  and  record  contents  in  a  book 
properly  ruled  and  indexed,  and  annually  in  the  month  of 
January  make  a  return  thereof  to  the  Secretary  of  State,  who 
shall  file  and  record  same. 

The  celebrant,  if  required,  shall  also  give  to  the  bride  and 
groom  each  a  certificate  specifying  their  names  and  residences, 
and  of  at  least  two  of  the  witnesses  present,  and  time  and 
place  of  the  marriage,  and  also  stating  that  he  had  examined 
on  oath  one  or  both  of  the  parties,  and  found  no  legal  impedi- 
ment to  their  marriage,  and  where  the  consent  of  parent  or 


MARRIAGE   IN  THE  UNITED   STATES.  323 

guardian  is  required,  stating  that  the  same  has  been  duly 
given. 

For  failure  to  examine  at  least  one  of  the  parties  on  oath  as  to 
legality  of  marriage,  and  age  of  bride  and  groom,  or  whoever 
shall  perform  the  ceremony  knowing  of  any  legal  impediment, 
or  shall  make  a  false  certificate,  or  perform  the  ceremony 
knowing  he  has  no  right  to  do  so,  or  shall  falsely  personate 
another,  or  assume  any  fictitious  name  in  so  doing,  or  the 
name  or  office  of  another,  or  aid  or  abet  any  false  or  fictitious 
marriage,  shall  be  imprisoned  not  more  than  one  years  or  fined 
not  exceeding  $500. 

No  marriage  solemnized  before  a  pretended  minister,  priest, 
or  magistrate  shall  be  for  that  reason  void,  so  long  as  the 
parties,  or  one  of  them,  acted  in  good  faith. 

Marriage  of  Children. — When  the  bride  has  attained  the 
age  of  fifteen  and  the  groom  eighteen,  they  are  capable  of  con- 
tracting marriage,  if  otherwise  competent.  But  if  the  groom 
is  under  twenty-one,  or  the  bride  under  eighteen,  and  neither 
has  been  previously  married,  the  consent  in  person  or  in  writ- 
ing of  the  parent  or  guardian  having  the  custody  of  such 
minor,  if  he  or  she  have  either  a  parent  or  guardian  living  in 
Wisconsin,  shall  first  be  given  to  the  celebrant  before  such 
marriage  shall  take  place  ;  if  the  consent  is  in  writing,  it  shall 
be  signed  by  the  parent  or  guardian,  and  attested  by  two 
witnesses,  one  of  whom  shall  appear  and  make  oath  before  the 
celebrant  that  he  saw  such  parent  or  guardian  execute  the 
same.  For  failure  to  require  such  written  consent  of  parent 
or  guardian  so  attested,  if  such  parent  or  guardian  be  absent 
from  the  ceremony,  such  celebrant  shall  be  imprisoned  not 
more  than  one  year  or  fined  not  exceeding  $500. 

Forbidden  Marriages :  Relatives. — No  marriage  shall 
be  contracted  between  parties  who  are  nearer  of  kin  than  first 
cousins,  computing  by  the  rule  of  the  civil  law,  whether  of  the 
half  or  of  the  whole  blood  ;  and  any  persons  so  prohibited  who 
shall  intermarry  shall  be  imprisoned  not  more  than  ten  nor 
less  than  two  years,  and  such  marriage  shall  be  void  without 
judgment  or  decree. 


324  THE   GEOGRAPHY  OF  MARRIAGE. 

Bigamy. — No  marriage  shall  be  contracted  while  either  of 
the  parties  has  a  husband  or  wife  living.  Such  second  mar- 
riage will  be  polygamy,  unless  the  accused  can  show  that  his 
or  her  husband  or  wife  shall  have  continually  remained  beyond 
sea,  or  sjiall  have  voluntarily  withdrawn  from  the  other,  and 
remained  absent  seven  years,  the  accused  not  knowing  such 
person  to  be  living  within  that  time,  or  that  he  or  she  has  been 
divorced  from  the  bonds  of  matrimony.  The  punishment  for 
polygamy  is  imprisonment  not  more  than  five  nor  less  than 
one  year,  or  fine  not  exceeding  $i,ooo  nor  less  than  $200. 

Divorce. — Marriage  within  prohibited  degrees  of  consan- 
guinity, or  where  former  husband  or  wife  is  living,  is  void  abso- 
lutely without  decree.  Divorce  absolute  may  be  granted  for  : 
(i)  adultery  ;  (2)  impotency  ;  (3)  sentence  to  imprisonment 
for  three  years  or  more  ;  (4)  wilful  desertion  for  one  year  ; 
(5)  cruel  and  inhuman  treatment ;  (6)  where  wife  shall  be 
given  to  intoxication  ;  (7)  habitual  drunkenness  for  one  year 
prior  to  commencement  of  action  ;  (8)  voluntary  separation 
for  five  years.  Divorce  from  bed  and  board  may  be  granted 
for  :  (i)  wilful  desertion  for  one  year  ;  (2)  cruel  and  inhuman 
treatment,  or  where  wife  shall  be  given  to  intoxicants  ;  (3) 
habitual  drunkenness  for  one  year  ;  (4)  extreme  cruelty  of 
either  party.  To  wife  also  where  husband  refuses  or  neglects 
to  provide  for  her,  being  of  sufficient  ability,  or  when  his  con- 
duct is  such  as  to  render  it  unsafe  and  improper  for  her  to 
live  with  him.  One  year's  residence  required,  except  for  adul- 
tery committed  while  plaintiff  was  a  resident  or  marriage  was 
solemnized  in  the  State  and  plaintiff  resided  in  the  State 
thereafter  until  commencement  of  suit,  or,  where  wife  is  plain- 
tiff, her  husband  has  resided  one  year  in  the  State. 

WYOMING. 

Where  either  party  to  a  marriage  is  insane  or  an  idiot  on  the 
wedding-day,  or  where  either  party  has  a  husband  or  wife 
living,  and  marries  a  second  time,  or  where  the  bride  and 


MARRIAGE  IN  THE  UNITED   STATES.  325 

groom  are  blood  relatives  and  nearer  of  kin  than  second  cous- 
ins, the  marriage  is  absolutely  void  without  decree.  Marriages 
contracted  out  of  the  Territory  which  are  valid  where  con- 
tracted are  valid  in  Wyoming.  Children  born  out  of  wedlock, 
whose  parents  subsequently  marry,  and  are  thereafter  acknowl- 
edged by  the  father,  inherit  as  if  legitimate. 

How  to  Marry. — A  marriage  license  in  every  case  must 
be  obtained  from  the  county  clerk  of  the  county  where  the 
wedding  is  to  take  place.  The  clerk  must  inquire  into  the 
facts  upon  the  testimony  of  the  applicant,  or  some  competent 
witness,  and  record  the  names,  ages,  and  residences  of  the 
parties,  and  whether  there  is  any  impediment  to  the  marriage, 
and  also  the  date  of  the  license. 

Marriage  may  be  celebrated  by  every  judge,  justice  of  the 
peace,  and  licensed  or  ordained  preacher  of  the  gospel.  Mem- 
bers of  any  religious  society  may  also  be  joined  in  marriage 
according  to  the  rites  and  customs  of  such  society.  No  par- 
ticular form  shall  be  required,  except  that  the  bride  and  groom 
shall  solemnly  declare,  in  the  presence  of  the  magistrate  or 
minister  and  at  least  two  attending  witnesses,  that  they  take 
each  other  as  husband  and  wife.  The  person  performing  the 
ceremony,  or  the  clerk  or  keeper  of  the  minutes,  or  modera- 
tor, or  person  presiding  at  the  religious  society  shall,  within 
three  months,  deliver  to  the  county  clerk  of  the  county  where 
the  wedding  took  place  a  certificate  containing  time  and  place 
of  marriage,  names,  ages,  and  places  of  residence  of  the  bride 
and  groom,  and  also  of  two  attending  witnesses.  He  must  also, 
upon  request,  give  such  a  certificate  to  each  of  the  parties.  The 
county  clerk  must  record  the  certificate  so  returned  within  one 
month.  [It  must  be  recorded  also,  pursuant  to  the  act  of 
Congress,  in  the  Probate  Court.  See  note  foot  of  page  194.] 
Neglect  either  to  return  or  record  such  certificate,  or  for  mak- 
ing a  false  certificate,  or  joining  persons  in  marriage  without 
authority,  is  punishable  by  fine  not  exceeding  $500  or  impris- 
onment not  exceeding  one  year.  A  marriage  solemnized  by  a 
person  professing  or  pretending  to  be  a  minister  or  priest  shall 


326  THE    GEOGRAPHY  OF  MARRIAGE. 

not  be  void  for  that  reason,  if  the  bride  or  groom  or  one  of 
them  acted  in  good  faith. 

Marriage  of  Children. — The  bride  must  be  sixteen  and 
the  groom  eighteen  in  order  to  be  able  to  consent  to  marriage. 
But  the  county  clerk  is  forbidden  to  issue  any  marriage  certifi- 
cate to  a  minor  without  the  consent,  either  verbal  or  in  writ- 
ing, of  the  father,  if  living,  or  of  the  mother,  or  guardian  of  the 
minor.  If  the  consent  is  in  writing,  it  must  be  proved  by  at 
least  one  competent  witness.  In  case  minors  marry,  the  mar- 
riage is  good  if  the  parties  live  together  after  the  age  of  con- 
sent is  passed.  Such  a  marriage  is  voidable  only  if  the  parties 
separate  before  the  age  of  consent  is  reached. 

Forbidden  Marriages  :  Relatives. — Marriage  is  pro- 
hibited between  parents  and  children,  grandparents  and  grand- 
children, brothers  and  sisters  of  the  half  as  well  as  of  the  whole 
blood,  uncles  and  nieces,  aunts  and  nephews,  and  first  cousins 
by  blood.  The  prohibition  extends  to  illegitimate  as  well  as 
legitimate  children  and  relatives.  The  punishment  is  impris- 
onment not  less  than  one  nor  exceeding  ten  years. 

Bigamy  consists  in  having  two  wives  or  two  husbands  at  the 
same  time,  knowing  that  the  former  husband  or  wife  is  still 
alive.  If  the  second  marriage  takes  place  out  of  the  Territory, 
the  fact  that  the  guilty  parties  live  together  in  Wyoming  is 
sufficient  to  constitute  the  crime.  It  will  be  a  defence,  how- 
ever, to  show  that  the  former  husband  or  wife  has  remained 
continually  absent  for  five  years  together,  the  accused  not 
knowing  such  absent  person  to  be  living  within  that  time,  or 
to  show  that  the  prior  marriage  has  been  dissolved  by  divorce 
or  declared  void.  The  punishment  for  bigamy  is  by  fine  not 
exceeding  $1,000  and  imprisonment  not  exceeding  two  years. 

Divorce — May  be  granted  for  :  (i)  adultery  ;  (2)  physical 
incompetency  at  time  of  marriage  continued  to  time  of  divorce  ; 
(3)  conviction  for  felony  and  imprisonment  therefor  ;  (4)  wil- 
ful desertion  for  one  year  ;  (5)  when  either  has  become  an 
habitual  drunkard  ;  (6)  when  either  has  been  guilty  of  extreme 
cruelty  ;  (7)  when  husband  for  one  year  has  neglected  to  pro- 


MARRIAGE  IN  THE  UNITED   STATES.         *     327 

vide  necessaries,  when  not  the  result  of  poverty,  which  he 
could  not  avoid  by  ordinary  industry  ;  (8)  indignities  offered 
by  either  as  shall  render  his  or  her  condition  intolerable  ;  (9) 
when  husband  become  "  a  vagrant  "  within  meaning  of  the 
law  ;  (10)  conviction  of  felony  or  infamous  crime  prior  to 
marriage  without  knowledge  of  the  other  at  the  time  of  mar- 
riage ;  (11)  when  wife  shall  have  been  pregnant  at  time  of 
marriage  by  another,  without  husband's  knowledge.  Six 
months'  residence  required.  Parties  may  testify,  but  their 
evidence  must  be  corroborated. 


INDEX. 


Abraham,  reference  to  marriage  of,  40 

Absence  of  husband  or  wife,  when  ex- 
cuses second  marriage,  78 

Absentees,  evils  of  allowing  divorces 
to  be  procured  against,  163 

Affinity,  when  bar  to  marriage,    57 

Africa,  marriage  valid  in,  declared 
void  in  England,  148 

Africans,  forbidden  marriage  with,  68 

Age,  at  which  children  may  marry,  S  ; 
of  consent  at  common  law,  12  ;  of 
consent  defined,  16 ;  of  consent, 
living  together  after,  19  ;  with  re- 
spect to  clandestine  marriages,  34 

Alabama,  marriage  of  divorced  per- 
sons in,  gg  ;  synopsis  of  laws  of 
marriage  and  divorce  in,  igi 

Amendments,  proposed  to  Federal 
Constitution  on  subject  of  marriage 
and  divorce,  177,  178  ;  limiting  the 
power  of  the  States,  182  ;  limiting 
powers  of  States  considered,  184 

Arizona,  mistress  may  become  a  lawful 
wife  in,  without  marriage,  117  ;  the 
"omnibus  clause"  as  to  divorce  in, 
I5g  ;  synopsis  of  laws  of  marriage 
and  divorce  in,  194 

Arkansas,  punishes  forced  marriages 
by  death,  2g  ;  death  the  penalty  for 
forced  marriages  in,  114  ;  synopsis 
of  laws  of  marriage  and  divorce  in, 
196 

Australia,  marriage  in,  153 


Banns,  what  constitutes  publication 
of,  10 

Baralong,  mode  of  celebrating  mar- 
riage among  tribe,  149 


Bechuana,  mode  of  celebrating  mar- 
riage in,  149 

Betrothal,  as  distinguished  from  mar- 
riage, III 

Bigamy,  and  its  consequences,  71  ; 
when  divorce  no  defense  to  charge 
of,  73  ;  punishment  for,  75  ;  law  of 
every  State  and  territory,  i9i-'327 

Bishop,  Joel  P.,  as  to  marriage  among 
relatives,  54 

Blood  relatives,  marriage  among,  37. 

Bonaparte,  Madame,  marriage  of ,  154. 

Borneo,  marriage  in,  153 

Bride  and  groom,  marrying  while  in- 
toxicated a  crime  in  Pennsylvania, 
128 

C 

California,  synopsis  of  laws  of  marriage 
and  divorce  in,  ig8 

Capture,  marriage  by,  38 

Catholic  Church  may  authorize  mar- 
riage of  cousins,  45 

Celebrant,  punishment  of,  for  marry- 
ing children  without  consent,  25  ; 
liability  of,  in  solemnizing  marriage, 
124-133  ;  within  what  territory  he 
must  act,  139 

Children,  marriage  of,  15  ;  conse- 
quence of,  marrj'ing  without  parents' 
consent,  22 

Chinaman,  when  forbidden  to  marry 
Caucasian,  69 

Church  of  England  does  not  prohibit 
marriage  of  cousins,  47,  54 

Clandestine  marriages  considered,  28 

Cleopatra,  marriage  of,  with  her  rela- 
tives, 41 

Clergymen,  liability  of,  in  solemnizing 
marriage,  124-133  ;  qualifications 
of,  requisite  to  solemnize  marriage, 
134-140  ;  in  what  States  thev  have 


329 


330 


THE   GEOGRAPHY  OF  MARRIAGE. 


the  exclusive  right  to  solemnize 
marriage,  139 

Colorado,  synopsis  of  laws  of  marriage 
and  divorce  in,  201 

Communal  marriage,  reference  to,  37 

Concubinage  may  drift  into  wedlock 
in  Arizona,  I17 

Congress,  objection  to  delegating 
power  to,  concerning  marriage  and 
divorce,  175  ;  law  of,  as  to  register- 
ing marriages  in  Territories,  194 

Connecticut,  the  "omnibus  clause"  as 
to  divorce  in,  159  ;  synopsis  of  laws 
of  marriage  and  divorce  in,  203 

Consanguinity  as  a  bar  to  marriage,  37 

Consent,  age  of,  regarded,  8  ;  age  of, 
at  common  law,  12  ;  age  of,  as  to 
marriage  defined,  16  ;  age  of,  in 
certain  parts  of  the  United  States, 
17  ;  effect  of  living  together  after 
age  of,  19  ;  punishment  \\'here  chil- 
dren marry  without,  20 ;  conse- 
quence of  marrying  without,  22  ; 
must  be  voluntary  to  constitute  mar- 
riage, III 

Constitution,  as  to  "full  faith  and 
credit"  with  respect  to  judgments 
in  divorce  cases,  164,  165  ;  objec- 
tions to  amendment  of,  as  to  mar- 
riage and  divorce,  175  ;  might  be 
amended  Ijy  limiting  the  power  of 
the  States,  182 

Cousins,  marriage  of,  by  dispensation, 
45  ;  sanitary  results  of  marriage  of, 
46,  50  ;  marriage  of,  in  United 
States,  50  ;  marriage  of,  in  Illinois, 
51  ;  marrying  in  Wisconsin  and 
living  in  Illinois,  143,  144 

Crime,  will  not  be  presumed  in  law,  151 


D 


Dakota,  synopsis  of  laws  of  marriage 
and  divorce  in,  205 

Darwin,  George  II.,  investigation  of, 
as  to  marriage  of  cousins,  46 

Davis,  Jefferson,  marriage  of,  33 

Death,  marriage  under  supposition  of, 
of  prior  lnisl)and  or  \\ife,  78  ;  ]mc- 
sum]ition  of,  wlicn  arises,  79 

I  )eath,  ])cnalty  for  forced  marriages  in 
Arkansas,  29  ;  ])rescribed  for  forced 
marriages  in  Arkansas,  114 


Deceased  wife's  sister,  marriage  with, 

58 
Delaware,  synopsis  of  laws  of  marriage 

and  divorce  in,  208 
Disqualifications  as  to  marriage,  7 
Divorce,  wdien  not  necessary  when  age 
of  consent  is  reached,  19  ;  when, 
will  not  excuse  bigamy,  73  ;  when 
guilty  party  to,  forbidden  to  marry, 
83,  93  ;  against  absentees,  83,  93-; 
is  a  creation  of  State  statutes,  156  ; 
Congress  can  legislate  as  to,  only 
in  the  Territories,  156  ;  legislation 
differs  in  every  State,  157  ;  "omni- 
bus clauses  "  in  the  various  States, 
158  ;  some  of  the  evils  of,  legis- 
lation, 162  ;  as  to  non-residents, 
163  ;  as  to  prohibiting  guilty  party 
to  marry  again,  163  ;  obtained  in 
other  States  against  absentees,  how 
far  valid,  165  ;  State  should  be  rep- 
resented in  every  suit  for,  167  ;  suits 
for,  should  be  tried  publicly,  168  ; 
prohibiting  marriage  of  guilty  party 
a  dead  letter,  171  ;  from  "  bed  and 
board,"  173  ;  objections  to  a  federal 
law  concerning,  175 
Divorce  legislation,  abuses  of,  88 
Divorced  persons,  when  forbidden  to 
marry,  83,  93 


Elders    may   solemnize    marriage    in 

Rhode  Island,  139 
Eldon,  Lord,  marriage  of,  31 
Elizabeth   Patterson,  marriage  of,  154 
Endogamy,  reference  to  custom,  38 
Engagement,    effect    of    secret,    with 

children,  23 
England,  marriage  valid  in  Africa  de- 
clared void  in,    148  ;  people  repre- 
sented in  divorce  suits  in,  167 
Enoch  Arden  marriages,  78 
Episcopal    Church,    see     Church    of 

l"jigland. 
ICxogamy,  reference  to  custom,  38 

F 

I'cderal  legislation  on  sujjject  of  mar- 
riage and  divorce,  175 

l'"ine  may  l)e  im]wsed  on  celclnant  for 
violating  marriage  law,  124-133 


INDEX. 


331 


Florida,  synopsis  of  laws  of  marriage 
and  divorce  in,  21 1 

Forbidden  marriages,  among  blood 
relatives,  37  ;  among  husband's  or 
wife's  kindred,  57  ;  among  mixed 
races,  64  ;  of  divorced  persons,  S3, 

93 
Forced  marriages,  punishment  for,  29  ; 
punishable  by  death  in    Arkansas, 
114 
Foreign  divorces,  effect  of,  83,  93 
France,   rules  of,  as  to  foreign  mar- 
riage in,  153,  154 
Fremont,  John  C,  marriage  of,  33 
Full  faith  and   credit   to   be  given  a 
judgment  in  one   State  granted  in 
another,  164 


Geography,  o.  marriage  considered, 
1-6  ;  an  essential  and  important  in- 
quiry, 5  ;  with  respect  to  marriage 
of  children,  20  ;  importance  of  ques- 
tion in  case  of  marriage  of  divorced 
persons,  96,  97 

Georgia,  people  represented  in  divorce 
suits  in,  167  ;  two  juries  required  in 
divorce  cases  in,  169  ;  synopsis  of 
laws  of  marriage  and  divorce  in, 
214 

Governor,  States  in  which  he  may  sol- 
emnize marriage,  140 

Gregory  the  Great,  on  marriage  of 
cousins,  45 

Gregory  III.,  prohibitions  prescribed 
by,  as  to  marriage,  42 

Gretna  Green  marriages,  31 


H 


Hebrews,  marriage  among,  prior  to 
time  of  Moses,  39.    See  also  Jews. 

Henry  VHI.,  Act  of  Parliament  as  to 
consanguineous  marriages,  44  ;  Act 
of  Parliament  forbidding  certain 
marriages,  58 

Husband's  kinsmen,  marriage  among:, 
56 

I 

Idaho,  synopsis  of  laws  of  marriage 
and  divorce  in,  217 


Illinois,  marriage  of  cousins  in,  51, 
52  ;  effect  of  marrying  cousins  in, 
143,  144  ;  synopsis  of  laws  of  mar- 
riage and  divorce  in,  220 

Impediments,  as  to  marriage,  11  ; 
arising  from  law  of  nature,  12  ; 
contrary  to  law  of  morals,  13  ;  as  to 
marriage  of  divorced  persons,  83 

Incest,  when  it  will  vitiate  marriage, 
142  ;  in  one  State,  and  not  in  an- 
other, 143 

Indiana,  State  represented  in  divorce 
suits  in,  167  ;  synopsis  of  laws  of 
marriage  and  divorce  in,  223 

Intoxication  of  bride  or  groom  at  cere- 
mony involves  punishment  of  cele- 
brant, 128 

Iowa,  synopsis  of  laws  of  marriage 
and  divorce  in,  226 

J 

Jacob,  reference  to  marriage  of,  40 

Jews,  marriage  among,  prior  to  time  of 
Moses,  40  ;  marriage  of,  in  Rhode 
Island,  55 

Judgment,  meaning  of,  within  the  Con- 
stitution respecting  divorces,  164 

Jury,  not  allowed  in  divorce  cases  in 
Missouri  and  elsewhere,  169,  170  ; 
should  be  allowed  in  every  divorce 
suit,  16S  ;  two  juries  necessary  in 
Georgia,   169 

Justices  of  the  Peace,  in  what  States 
allowed  to  solemnize  marriage,  139, 
140 

K 

Kansas,  marriage  of  divorced  persons 
in,  97  ;  synopsis  of  laws  of  marriage 
and  divorce  in,  228 

Kentucky,  marriage  with  widow  of 
deceased  uncle  in,  55  ;  marriage  of 
divorced  persons  in,  99  ;  the  ' '  omni- 
bus clause"  as  to  divorce  in,  159; 
State  represented  in  divorce  suits  in, 
167  ;  synopsis  of  laws  of  marriage 
and  divorce  in,  231 

Kindred,  marriage  among,  37,  56 

Knox,  General,  marriage  of,  32 


Law  of  morals,  marriage  in  violation 
of,  13.     See  also  Moral  Law. 


332 


THE    GEOGRAPHY  OF  MARRIAGE. 


Law   of   nature,   violations  of,   as   to 

marriage,   I2 
Legislation,  abuses  of  divorce,  88 
Levitical   law,    prohibition    of,  as   to 

marriage,  40,  42 
License  to  marry,  where  required  and 

by  whom  issued,  iig-123 
Licensing  official,  who  designated  as, 

1 19-123  ;    liabilities    incurred    by, 

124-133 
Louisiana,  synopsis  of  laws  of  marriage 
and  divorce  in,  235 


M 


Magistrates,  requisite  qualifications  of, 
to  solemnize  marriage,  134-140 

Maine,  marriage  of  divorced  persons 
in,  100 ;  women  may  solemnize 
marriage  in,  109  ;  synopsis  of  laws 
of  marriage  and  divorce  in,  239 

Marriage,  considered  geographically, 
1-6  ;  importance  of  the  subject,  2  ; 
necessity  of  uniform  law  as  to,  6  ; 
who  may  lawfully  marry,  7  ;  dis- 
qualifications as  to,  7 ;  who  for- 
bidden to  marry,  10 ;  with  wife's 
kindred,  13  ;  how  annulled  before 
age  of  consent,  19  ;  consequence  of, 
without  parents'  consent,  22  ;  clan- 
destine marriages  considered,  28  ; 
by  force  punished  by  death  in  Ar- 
kansas, 29  ;  among  blood  relatives, 
37  ;  by  capture,  reference  to,  38  ; 
among  husband's  or  wife's  kindred, 
57  ;  between  mixed  races,  64  ;  in- 
volving bigamy  or  polygamy,  71  ; 
under  belief  that  former  husband  or 
wife  is  dead,  78  ;  what  constitutes 
a  valid  marriage,  103-118  ;  an  in- 
herent right,  104 ;  society  cannot 
confer  right  to,  104 ;  of  Quakers 
recognized  everywhere,  105  ;  right 
of  jiarties  to  marry  themselves,  105  ; 
States  in  which  the  right  is  denied, 
105  ;  modes  in  wliicli  it  may  be 
consummated,  106  ;  regarded  inlaw 
only  as  a  civil  contract,  no;  when 
agreement  must  l)e  in  writing,  no  ; 
disadvantages  of  persons  marrying 
themselves,  iio;  contract  of,  must 
be  mutual,  in  ;  must  be  mutual  in 
order  to  bind  the  parties,  illustration 


of  the  rule,  112  ;  by  force  punish- 
able by  death  in  Arkansas,  114; 
may  be  consummated  without  any 
contract  in  Arizona,  117  ;  license 
for,  where  required,  and  by  whom 
issued,  ng-123  ;  valid  where  cel- 
ebrated, validity  of,  elsewhere,  141, 
155  ;  forbidden  in  one  State  and 
solemnized  in  another,  143-149  ;  of 
guilty  divorced  party,  how  far  pro- 
hibited, 171  ;  policy  of  such  a  pro- 
hibition questioned,  171  ;  objections 
to  federal  law  concerning,  175  ;  uni- 
form laws  as  to,  suggested  by  gov- 
ernor of  New  York,  184,  185  ;  how 
registered   under  law  of  Congress, 

194  . 

and  divorce,  bird's-eye  view  of, 

in  United  States,  190 

Maryland,  synopsis  of  la\\'s  of  marriage 
and  divorce  in,  242 

Massachusetts,  marriage  of  divorced 
persons  in,  100  ;  right  to  marry  de- 
nied by  implication  in,  105  ;  in- 
stance where  it  was  claimed  right  to 
marry  was  taken  away  by  implica- 
tion in,  14  ;  synopsis  of  laws  of 
marriage  and  divorce  in,  245 

Mayors,  in  what  States  allowed  to  sol- 
emnize jiiarriage,  140 

Michigan,  synopsis  of  laws  of  marriage 
and  divorce  in,  249 

Ministers,  liability  of,  in  solemnizing 
marriage,  124-133 

Minnesota,  synopsis  of  laws  of  mar- 
riage and  divorce  in,  252 

Miscegenation,  where  forbidden,  64 

Mississippi,  supervisor  may  solemnize 
marriage  in,  140  ;  synopsis  of  laws 
of  marriage  and  divorce  in,  255 

Missouri,  marriage  of  divorced  j^ersons 
in,  99  ;  no  jury  allowed  in  divorce 
cases  in,  169  ;  synopsis  of  laws  of 
marriage  and  divorce  in,  258 

Mongolian,  forbidden  marriage  with, 
69 

Montana,  synopsis  of  laws  of  marriage 
and  divorce  in,  261 

Moral  law,  marriage  in  violation  of,  13 

Moses,  reference  to  marriage  of,  40, 

Mulatloes,  forlnddcu  marriages  with, 
68 


INDEX. 


333 


N 


National  divorce  law,  objections  to, 
considered,  175 

Nebraska,  synopsis  of  laws  of  marriage 
and  divorce  in,  263 

Negroes,  marriage  of,  with  whites, 
64 

Nephew,  where  marriage  of,  forbid- 
den, 49 

Nevada,  synopsis  of  laws  of  marriage 
and  divorce,  265 

New  Hampshire,  synopsis  of  laws  of 
marriage  and  divorce  in,  269 

New  Jersey,  marriage  of  divorced  per- 
sons in,  97 ;  synopsis  of  laws  of 
marriage  and  divorce  in,  272 

New  Mexico,  synopsis  of  laws  of  mar- 
riage and  divorce  in,  275 

New  York,  marriage  of  divorced  per- 
sons in,  97  ;  what  constitutes  a  valid 
marriage  in,  no;  rule  in,  as  to  di- 
vorces against  absentees,  165  ;  jury 
in  divorce  suit  not  a  matter  of  right 
in,  169 ;  governor  of,  urges  concert 
of  action  among  the  States,  181  ; 
synopsis  of  laws  of  marriage  and 
divorce  in,  279 

New  Zealand,  marriage  in,  153 

Niece,  where  marriage  of,  forbidden, 

49 

Non-residents,  evil  of  allowing  di- 
vorces to  be  procured  against,  163  ; 
policy  of  abolishing  divorces  against, 
167 

North  Carolina,  synopsis  of  laws  of 
marriage  and  divorce  in,  282 

North  Dakota,  reference  to  admission 
of,  to  the  Union,  285 


O 


Ohio,  synopsis  of  laws  of  marriage  and 
divorce  in,  285 

"Omnibus  Clauses,"  the  marvel  of  di- 
vorce legislation,  158  ;  in  the  vari- 
ous States  considered,  158 

Ordained,  word  as  used  in  connection 
with  clergymen,  134  ;  States  where 
the  word  is  retained,  135 

Oregon,  synopsis  of  laws  of  marriage 
and  divorce  in,  288 


Pains  and  penalties  involved  in  matri- 
monial affairs,  124-133 

Parents,  consequence  of  marrying  with- 
out consent  of,  22 

Parker,  Archbishop,  table  of,  does  not 
prohibit  marriage  of  cousins,  54 

Patagonia,  marriage  in,  153 

Patterson,  Elizabeth,  marriage  of,  154 

Pennsylvania,  marriage  of  divorced 
persons  in,  100  ;  synopsis  of  laws 
of  marriage  and  divorce  in,  291 

Pius  YII.,  refusal  of,  to  ignore  the 
marriage  of  Jerome  Bonaparte,  155 

Polygamy,  punishment  for,  71  ;  Con- 
gress may  prohibit,  72  ;  when  it 
will  invalidate  marriage,  142  ;  va- 
lidity of  marriage  in  country  where 
practised,  148 

Polynesia,  marriage  in,  153 

Priests,  liabilities  of,  in  solemnizing 
marriage,  124-133  ;  qualifications 
of,   to  solemnize  marriage,  134-140 

Prohibition,  as  to  marriage  of  divorced 
persons,  83,  93 

Property  of  child  who  marries  with- 
out consent,  23 

Protestant  Episcopal  Church,  see 
Church  of  England. 

Publication,  evils  of  service  of  sum- 
mons by,  in  divorce  cases,  164 

Publicity  should  prevail  in  divorce  liti- 
gation, 168 

Punishment,  where  children  marry 
without  consent,  20  ;  for  marrying 
children  without  parents'  consent, 
24  ;  by  death  for  forced  marriage 
in  Arkansas,  29  ;  for  bigamy,  75  ; 
not  the  object  of  law  so  much  as 
reformation,  171  ;  of  guilty  divorced 
person,  171 


Quaker    marriages   everywhere  recog- 
nized, 105 


R 


Races,  marriage  between  divers,  64 
Remarriage  of  guilty  divorced  person, 
171.     See  also  Divorce. 


334 


THE    GEOGRAPHY   OF  MARRIAGE. 


Remedy,  suggested  by  Governor  Hill 
of  New  York,  184,  185  ;  with  re- 
spect to  a  uniform  law,  175 

Rhode  Island,  an  elder  may  solemnize 
marriage  in,  139  ;  liberality  in,  as  to 
marriage  of  Jews,  55  ;  synopsis  of 
laws  of  marriage  and  divorce  in,  295 

Runaway  marriages  considered,  28 


Scotland,  people,  by  Lord  Advocate, 
represented  in  divorce  suits  in,  167 

Sister  of  deceased  wife,  marriage  of,  58 

South  Carolina,  synopsis  of  laws  of 
marriage  and  divorce  in,  298 

South  Dakota,  reference  to  admission 
of,  to  Union,  300 

State,  should  be  a  party  to  every  suit 
for  divorce,  167  ;  is  represented  in, 
in  Great  Britain,  167  ;  is  repre- 
sented in,  in  Georgia,  Indiana, 
Kentucky,  and  Vermont,  167  ;  di- 
vorce laws  when  not  binding  be- 
yond, 98 

Supervisors  may  solemnize  marriage 
in  Mississippi,  140 


T 


Tennessee,  marriage  with  widow  of 
deceased  uncle  in,  55  ;  synopsis  of 
laws  of  marriage  and  divorce  in, 
300 

Texas,  synopsis  of  laws  of  marriage 
and  divorce  in,  303 


U 


Uncle,   marriage    with    widow  of    de- 
ceased,  55 


Uniform  law  urged  by  governor  of 
New  York,  184,  185  ;  may  be  se- 
cured by  concert  of  action  among 
the  States,  182  ;  not  feasible  by 
amending  constitution,  179 

United  States,  bird's-eye  view  of  law 
of  marriage  and  divorce  in,  190 

Utah,  synopsis  of  laws  of  marriage 
and  divorce  in,  305 


V 


Validity  of  marriage  valid  where  cele- 
brated, in  other  States,  141 -155 

Vermont,  marriage  of  divorced  per- 
sons in,  100  ;  State  represented  in 
divorce  suits  in,  167  ;  synopsis  of 
laws  of  marriage  and  divorce  in,  309 

Virginia,  marriage  of  divorced  persons 
in,  loi  ;  synopsis  of  laws  of  mar- 
riage and  divorce  in,  312 


W 


Washington,  reference  to  admission  of, 
to  Union,  315 

Washington  Territory,  synopsis  of 
laws  of  marriage  and  divorce  in,  315 

West  Virginia,  synopsis  of  laws  of 
marriage  and  divorce  in,  318 

Widow  of  deceased  uncle,  marriage 
with,  55 

\\'ife's  kinsmen,  marriage  among,  56 

\\'isconsin,  -synopsis  of  laws  of  mar- 
riage and  divorce  in,  321 

Witnesses  required  when  persons 
marry  themselves,  when,  no 

Women  authorized  to  solemnize  mar- 
riage in  Maine,  109 

Wyoming,  synopsis  of  laws  of  mar- 
riage and  divorce  in,  324 


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